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[ { "docid": "22726189", "title": "", "text": "expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U. S. 535, 551 (1974). We may readily do so here by holding that § 3553(a)(4)(A)(ii) applies to Guidelines amendments, and § 109 to statutory ones. The Court also stresses that the Fair Sentencing Act instructs the Sentencing Commission to promulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “such conforming amendments” to the Sentencing Guidelines “as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.” § 8, 124 Stat. 2374. The argument goes that, because the Commission implemented this directive by reducing the Guidelines ranges for crack cocaine offenses to track the 18-to-l erack-to-powder ratio reflected in the new mandatory minimums, see 75 Fed. Reg. 66191 (2010), and because the general rule is that a sentencing court should apply the version of the Guidelines in effect at the time of sentencing, see 18 U. S. C. § 3553(a)(4)(A)(ii), Congress must have understood that the new mandatory minimums would apply immediately, since otherwise there would be a mismatch between the statutory penalties and Guidelines ranges. That conclusion simply does not follow. For one thing, the argument begs the very question presented here: What is the “applicable law” relevant to preenactment offenders who are sentenced after enactment? The Commission could well have answered this question by concluding that, in light of § 109, the law applicable to such offenders is the pre-Act mandatory minimums. It might therefore have retained, as to those offenders, the existing Guidelines ranges reflecting a higher crack-to-powder ratio. Although rare, it is not unheard of for the Commission to establish Guidelines whose application turns on the date of commission of the defend ant’s offense. See United States Sentencing Commission, Guidelines Manual § 5E1.1(g)(1) (Nov. 2011) (governing restitution for offenses committed on or after November 1, 1997, and providing that the prior version of the Guideline shall govern all other cases); id., § 8B1.1(f)(1) (same for restitution obligations of organizational defendants). Of course, the Commission did not interpret the Fair Sentencing Act’s" } ]

[ { "docid": "22140669", "title": "", "text": "apply to a defendant sentenced before the Act’s effective date. Moreover, we reject Black’s argument that a § 3582(c)(2) proceeding conducted after the effective date of the Fair Sentencing Act provides a vehicle by which to apply the reduced minimum sentences in the Fair Sentencing Act to him. I Black pleaded guilty on September 14, 2006, to conspiracy-to distribute and possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. §■§ 846, 841(a)(1). In the presen-tence report prepared for Black’s sentencing, the probation officer recommended that Black be held accountable for 84.2 grams of crack cocaine and 26.8 grams of powder cocaine, yielding, after other adjustments not relevant here, a Sentencing Guidelines range of 97 to 121 months’ imprisonment. Because the underlying drug trafficking offense involved more than 50 grams of crack cocaine, however, Black was subject to a statutory minimum sentence of 120 months’ imprisonment, id. § 841(b)(1)(A) (2006), and therefore his sentencing range became 120 to 121 months’ imprisonment. On January 23, 2007, the district court sentenced Black to 120 months’ imprisonment, the statutory minimum. More than three years later, Congress enacted the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-220, 124 Stat. 2372, in response to extensive criticism about the disparity in sentences between crack cocaine offenses and powder cocaine offenses. See Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 2328-29, 183 L.Ed.2d 250 (2012). Among other things, the FSA reduced the statutory minimum sentences for crack cocaine offenses by increasing the quantity of crack cocaine necessary to trigger the mínimums — raising the amount from 15 grams to 28 grams for the 5-year minimum sentence, and from 50 grams to 280 grams for the 10-year minimum sentence. See FSA § (2)(a). The Act left the statutory minimum sentences for powder cocaine in place. The effect of the changes was to reduce the sentencing disparity between crack cocaine offenses and powder cocaine offenses by-lowering the crack-to-powder ratio from 100-to-l to 18-to-l. The FSA also directed the Sentencing Commission to conform the Sentencing Guidelines to the- new statutory" }, { "docid": "22818043", "title": "", "text": "same under any standard of review because the district court committed no error, plain or otherwise, in imposing sentences mandated by statute. At the time that appellant committed the crimes, 21 U.S.C. § 841 provided that an individual who distributes or possesses with intent to distribute 50 grams or more of crack cocaine “shall be sentenced to a term of imprisonment which may not be less than 10 years.” 21 U.S.C. § 841 (b)(1)(A)(iii). “It is well-settled that a district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the government files a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).” United States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir.2008). A defendant qualifies for the safety-valve exception of § 3553(f) only if he “does not have more than 1 criminal history point.” 18 U.S.C. § 3553(f)(1). The Sentencing Guidelines are to be applied in an advisory fashion. United States v. Booker, 543 U.S. 220, 258-59, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005). However, Booker does not affect the mandatory nature of statutory minimum sentences. United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007) (“Even after Booker, the district court is bound by the statutory mandatory mínimums.”). In Kimbrough, the Supreme Court held that district courts have authority to deviate from the 100:1 crack-to-powder ratio in fashioning an appropriate sentence under § 3553(a) factors. Kimbrough, 552 U.S. at 108, 128 S.Ct. at 574. The Court noted, however, that district courts remain “constrained by the mandatory mínimums” prescribed by Congress. Id.; accord Spears, 129 S.Ct. at 844 (district court’s determination that a mandatory minimum sentence was required “moot[ed] any further arguments for a reduced sentence”). Appellant references the FSA to support his argument that his 10-year mandatory minimum sentences, arising out of the flawed 100:1 crack-to-powder cocaine ratio, is unfair and conflicts with 18 U.S.C. § 3553(a). The FSA, signed into law on August 3, 2010, changes to the crack-to-powder ratio from 100:1 to about 18:1. See Pub.L.No 111-220, 124 Stat." }, { "docid": "18425453", "title": "", "text": "about the 262-month sentence imposed here. Jordan also challenges his sentence on the ground that the district court refused to account for the disparity between guidelines ranges for crack offenses and powder cocaine offenses. Jordan did not raise this issue in the district court and acknowledges that he cannot currently meet the test for plain error in this circuit; we have consistently rejected post-Booker challenges of this sort to the 100:1 sentencing ratio between crack and powder cocaine. See, e.g., United States v. Miller, 450 F.3d 270, 275 (7th Cir.2006); United States v. Jointer, 457 F.3d 682, 686 (7th Cir.2006); United States v. Lister, 432 F.3d 754, 762 (7th Cir.2005); United States v. Gipson, 425 F.3d 335, 337 (7th Cir.2005). Jordan is simply preserving the issue for further review. Jordan next argues that the district court improperly based his sentence on a prior conviction that was neither contained in the indictment, proven to a jury beyond a reasonable doubt, nor admitted to by him. Jordan admits Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), forecloses the argument that his prior conviction ought to have been found by a jury, but argues that subsequent Supreme Court cases (Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely, and Booker) have undermined the reasoning of Almendarez-Torres. We have repeatedly observed that Almendarez-Torres remains valid until the Supreme Court overrules it. See, e.g., United States v. Stevens, 453 F.3d 963, 967 (7th Cir.2006); United States v. Browning, 436 F.3d 780, 782 (7th Cir.2006) (noting that continuing authority of Almendarez-Torres is not for this court to decide). Finally, Jordan challenges the condition of his supervised release requiring him to participate in a drug or alcohol abuse treatment program and abstain completely from alcohol during the program. He argues that this condition is a greater deprivation of liberty than is reasonably necessary for sentencing purposes because the only evidence in the record about his drug or alcohol use is his statement to the probation officer that he does not use either. Again, Jordan failed" }, { "docid": "22818044", "title": "", "text": "S.Ct. 738, 764, 160 L.Ed.2d 621 (2005). However, Booker does not affect the mandatory nature of statutory minimum sentences. United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007) (“Even after Booker, the district court is bound by the statutory mandatory mínimums.”). In Kimbrough, the Supreme Court held that district courts have authority to deviate from the 100:1 crack-to-powder ratio in fashioning an appropriate sentence under § 3553(a) factors. Kimbrough, 552 U.S. at 108, 128 S.Ct. at 574. The Court noted, however, that district courts remain “constrained by the mandatory mínimums” prescribed by Congress. Id.; accord Spears, 129 S.Ct. at 844 (district court’s determination that a mandatory minimum sentence was required “moot[ed] any further arguments for a reduced sentence”). Appellant references the FSA to support his argument that his 10-year mandatory minimum sentences, arising out of the flawed 100:1 crack-to-powder cocaine ratio, is unfair and conflicts with 18 U.S.C. § 3553(a). The FSA, signed into law on August 3, 2010, changes to the crack-to-powder ratio from 100:1 to about 18:1. See Pub.L.No 111-220, 124 Stat. 2372. The Act amends the sentencing provisions in 21 U.S.C. § 841(b)(1) by raising from 50 grams to 280 grams the amount of crack necessary to trigger the 10-year mandatory minimum sentence, and raising the amount from 5 to 28 grams necessary to trigger the 5-year minimum. Id. § 2(a)(1)-(2). Section 109 of Title 1 provides in part: The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. 1 U.S.C. § 109. Appellant fails to establish that the district court committed any error in sentencing him to the mandatory minimum. The government did not file a substantial assistance motion under § 3553(e), and he did not qualify for the safety-valve exception under § 3553(f). Aside from these two statutory exceptions, no relevant authority permits" }, { "docid": "23077241", "title": "", "text": "OPINION OF THE COURT FISHER, Circuit Judge. The question presented in this appeal is whether the more favorable mandatory minimum prison sentences imposed by the Fair Sentencing Act of 2010 (the “FSA” or the “Act”) apply retroactively to defendants, like Kenneth Dixon, who committed their crimes before the Act became law, but who were sentenced afterwards. We hold that the FSA does apply in this instance. The language of the Act reveals Congress’s intent that courts no longer be forced to impose mandatory mínimums sentences that are both indefensible and discriminatory. Therefore, we will vacate the judgment of the District Court and remand for resentencing. I. From November 2007 until December 2008, Dixon conspired to distribute approximately fifty-one grams of crack cocaine. On March 19, 2010, he pled guilty to conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846, and receipt and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). At the time of Dixon’s offense, the Anti-Drug Abuse Act of 1986 (the “1986 Act”) mandated penalties for powder cocaine and crack cocaine according to a 100:1 ratio, creating a pronounced disparity between offenders convicted of possessing crack cocaine and those convicted of possessing powder cocaine. More precisely, a conviction involving five grams of crack cocaine resulted in the same five-year mandatory minimum term of imprisonment as a conviction involving 500 grams of powder cocaine. Similarly, a conviction involving fifty grams of crack cocaine resulted in the same ten-year mandatory minimum term of imprisonment as a conviction for 5,000 grams of powder cocaine. 21 U.S.C. § 841(b)(l)(A)(iii) & (B)(iii) (2006). The initial justification for this difference in treatment — that crack cocaine was more dangerous and addictive than powder cocaine' — repeatedly came under attack as the implications of the disparity emerged. See Kimbrough v. United States, 552 U.S. 85, 97-99, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (describing the United States Sentencing Commission’s criticism of the 100:1 ratio). This controversy resulted from data suggesting that African-American defendants received disproportionately higher sentences for crack cocaine offenses than white" }, { "docid": "23546030", "title": "", "text": "status. As discussed, his sentence was imposed on August 16, 2007. The U.S. Sentencing Commission has lowered the guideline ranges for defendants convicted for crack cocaine offenses two times since that date. First, on November 1, 2007, the Commission issued Amendment 706, which lowered the crack sentencing guidelines for most crack offenses by two levels based on drug quantity. See USSG App. C, Amend. 706 (2007).. The Commission put Amendment 706 in place, effective March 3, 2008, not only for those who would be convicted of crack offenses in the future, but also for those who were already serving sentences for crack crimes. See USSG App. C, Amend. 713 (Supp. May 1, 2008). This allowed some offenders who had been convicted of crack offenses before November 1, 2007, to get a two level reduction in their sentence pursuant to 18 U.S.C. § 3582(c)(2). See id. (listing Amendment 706 under USSG § 1B1.10(c) as a retroactively applicable amendment). But Mr. Spencer was not eligible for a sentence reduction under Amendment 706 because he had been sentenced as a career offender. See United States v. Moore, 541 F.3d 1323, 1330 (11th Cir.2008) (holding that Amendment 706 does not apply to defendants who were sentenced as career offenders). If Mr. Spencer had not been sentenced as a career offender, his sentencing range could have been reduced to 51 to 71 months. Then, in 2010, Congress enacted the Fair Sentencing Act, which became effective on August 3, 2010. Fair Sentencing Act of 2010(FSA), Pub.L. No. 111-220 § 2(a), 124 Stat. 2372 (2010). The FSA “reduc[ed] the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1.” Dorsey v. United States, — U.S. -, -, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012). The FSA was Congress’ response to nearly two decades of criticism from the “Commission and others in law enforcement community” about “Congress’ decision to set the crack-to-powder minimum ratio at 100-to-1.” Id. at -, 132 S.Ct. at 2328; see also id. at ---. 132 S.Ct. at 2328-29 (citing four separate Sentencing Commission reports telling Congress that the ratio was “too high and unjustified”). Among other" }, { "docid": "22140670", "title": "", "text": "sentenced Black to 120 months’ imprisonment, the statutory minimum. More than three years later, Congress enacted the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-220, 124 Stat. 2372, in response to extensive criticism about the disparity in sentences between crack cocaine offenses and powder cocaine offenses. See Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 2328-29, 183 L.Ed.2d 250 (2012). Among other things, the FSA reduced the statutory minimum sentences for crack cocaine offenses by increasing the quantity of crack cocaine necessary to trigger the mínimums — raising the amount from 15 grams to 28 grams for the 5-year minimum sentence, and from 50 grams to 280 grams for the 10-year minimum sentence. See FSA § (2)(a). The Act left the statutory minimum sentences for powder cocaine in place. The effect of the changes was to reduce the sentencing disparity between crack cocaine offenses and powder cocaine offenses by-lowering the crack-to-powder ratio from 100-to-l to 18-to-l. The FSA also directed the Sentencing Commission to conform the Sentencing Guidelines to the- new statutory mínimums “as soon practicable.” Id. § 8. The Sentencing Commission thereafter promulgated amendments to the Guidelines, reducing the recommended sentencing ranges to levels consistent with the FSA, to be applied retroactively. See U.S.S.G.App. C Amends. 750, 759 (2011). Comments to the Guidelines, however, explain that retroactive amendments do not alter statutory minimum terms of imprisonment. See U.S.S.G. § 1B1.10, cmt. n. 1(A). On October 18, 2012, Black filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows for a sentence reduction “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Black claimed that because the FSA had lowered the statutory minimum for the amount of crack cocaine for which he was accountable from 120 months’ imprisonment to 60 months’ imprisonment and the Sentencing Commission had, as required by the FSA, reduced its recommended sentencing ranges for crack cocaine to the same extent, his sentence should be reduced accordingly. The district" }, { "docid": "22677756", "title": "", "text": "Report”). It reiterated that reform was necessary and explicitly criticized the status quo: “[T]he Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act [of 1984] and the [Anti-Drug Abuse] Act.” Id. at 91. It further explained that “while there are reasons to punish crack cocaine offenses more seriously than powder cocaine offenses involving equivalent quantities,” “a 100-to-l drug quantity ratio is excessive to account for the differences in harms between the two drugs.” Id. at 92-93. According to the report, the underlying rationale that prompted the ratio (including the premise that crack cocaine was more addictive, would lead to a lost generation of “crack babies,” and was highly correlated with violent crimes) had been shown over time to be overstated. Thus, the Commission endorsed a reduction of the crack/powder cocaine sentencing differential from a ratio of 100:1 to one of 20:1. Id. at 107. Congress again deliberated on the Commission’s recommendations and again refused to modify or reform the 100:1 differential. In sum, after three separate reports and proposed amendments to the 100:1 ratio, Congress has kept in force the initial sentencing difference between crack and powder cocaine. B. Legal Landscape Post-Booker: The Third Circuit As mentioned above, Gunter relies on Booker for his argument that the District Court had discretion to consider and impose a sentence below the range set in the Guidelines for crack offenses. That decision is described in various opinions of our Court, see, e.g., United States v. Cooper, 437 F.3d 324 (3d Cir.2006), and we will not go over the same ground in detail here. Simply stated, the Supreme Court delivered two different opinions in Booker, both by five-to-four votes, with the dissenters to each opinion switching sides (Justice Ginsburg providing the tie-breaking vote in each opinion). In the first, or “constitutional,” opinion, the Court reaffirmed its state-law holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “[a]ny fact (other than a prior conviction) which" }, { "docid": "23458045", "title": "", "text": "(“Although Kim-brough empowers a district court to consider the disparity between guideline sentences for powder cocaine and crack, it does not require it to do so.”). Therefore, the district court did not abuse its discretion in sentencing Saddler to 322 months’ imprisonment. C. Sixth Amendment Violation Finally, Saddler argues that the district court violated his Sixth Amendment rights because the jury did not determine a key fact that increased the statutory maximum penalty he faced. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury, and proved beyond a reasonable doubt.”). Because Saddler did not raise this constitutional challenge at sentencing, we again review for plain error. See United States v. Conelly, 451 F.3d 942, 944 (8th Cir.2006). Saddler was convicted of conspiracy to distribute and possession with the intent to distribute fifty grams or more of a mixture or substance containing a detectable amount of “cocaine base” in violation of 21 U.S.C. § 841(b)(1)(A). Saddler contends that to be convicted of a § 841(b)(1)(A) offense, the jury must determine that the offense involved “crack cocaine” rather than some other form of “cocaine base.” See United States v. Edwards, 397 F.3d 570, 571-77 (7th Cir.2005) (holding that a § 841(b)(1)(A)(iii) conviction requires proof of crack cocaine). According to Saddler, if the jury determines that the offense involved “crack cocaine,” Saddler could be sentenced to a maximum of life imprisonment as prescribed by § 841(b)(1)(A); however, if the jury determines that the offense involved some other form of “cocaine base,” he could only be sentenced to a maximum of twenty years as prescribed by 21 U.S.C. § 841(b)(1)(C). Saddler argues that the district court could not have constitutionally sentenced him above twenty years’ imprisonment for these convictions because the jury never determined whether the “cocaine base” involved in the convictions was- “crack cocaine.” We conclude that the district court did not commit error, much less plain error, because the jury determined that the offenses involved" }, { "docid": "22677757", "title": "", "text": "refused to modify or reform the 100:1 differential. In sum, after three separate reports and proposed amendments to the 100:1 ratio, Congress has kept in force the initial sentencing difference between crack and powder cocaine. B. Legal Landscape Post-Booker: The Third Circuit As mentioned above, Gunter relies on Booker for his argument that the District Court had discretion to consider and impose a sentence below the range set in the Guidelines for crack offenses. That decision is described in various opinions of our Court, see, e.g., United States v. Cooper, 437 F.3d 324 (3d Cir.2006), and we will not go over the same ground in detail here. Simply stated, the Supreme Court delivered two different opinions in Booker, both by five-to-four votes, with the dissenters to each opinion switching sides (Justice Ginsburg providing the tie-breaking vote in each opinion). In the first, or “constitutional,” opinion, the Court reaffirmed its state-law holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the [statutory] 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.” Booker, 543 U.S. at 244, 125 S.Ct. 738. If not, the defendant’s Sixth Amendment right to trial by jury is violated. When district judges are permitted by the Sentencing Guidelines, the application of which was mandatory under 18 U.S.C. § 3553(b)(1), to cross into this forbidden area of judicial fact-finding at sentencing, they are unconstitutional. In the second, or “remedial,” opinion, the Court remedied this constitutional violation by excising § 3553(b)(1) from the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837, 1987 (1984), thereby rendering the Guidelines “effectively advisory.” Id. at 245, 125 S.Ct. 738. Combining these holdings in practice means that district courts may fact-find to increase sentences beyond the Guidelines range provided they are within the statutory minimum and maximum dictated by the United States Code, take into account the relevant" }, { "docid": "23077244", "title": "", "text": "sentencing.” Fair Sentencing Act of 2010, Pub.L. 111-220, § 2, 124 Stat. 2372, 2372 (2010). The FSA reduced the crack/powder ratio to approximately 18:1. According to the Act, the five-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses twenty-eight grams and the ten-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses 280 grams (the triggers for powder cocaine remain 500 grams and 5,000 grams, respectively). Id. Recognizing the need to connect the new mandatory minimum penalties with the Sentencing Guidelines, Section 8 of the Act vests the Sentencing Commission with emergency authority to: (1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act ... and (2) pursuant to the emergency authority provided under paragraph (1), make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law. Id. § 8. New, FSA-compliant, sentencing Guidelines implementing the 18:1 ratio went into effect on November 1, 2010. See Notice of a Temporary, Emergency Amendment to Sentencing Guidelines and Commentary, 75 Fed.Reg. 66,188 (Oct. 27, 2010); U.S.S.G. supp. to app. C, amend. 748 (Supp.2010) (amending U.S.S.G. § 2Dl.l(c)) (effective Nov. 1, 2010). Additionally, Congress directed the Sentencing Commission to “study and submit to Congress a report regarding the impact of the changes in Federal sentencing law under this Act[J” FSA § 10. Under the 1986 Act, Dixon faced a mandatory minimum of ten years’ imprisonment because he possessed more than fifty grams of crack cocaine. If the FSA applied, however, he would be subject to a mandatory minimum of five years’ imprisonment. Before the District Court, Dixon argued that the mandatory mínimums set forth in the FSA should govern because the Act was in effect on the date of his October 25, 2010 sentencing hearing. The District Court disagreed and concluded, in accordance with the Government’s view, that a mandatory minimum term of ten years’" }, { "docid": "23458044", "title": "", "text": "omitted); accord United States v. Olano, 507 U.S. 725, 733-736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We recognize that during the pendency of Saddler’s appeal, the United States Supreme Court decided Kimbrough v. United States, 552 U.S.-, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which held that the district court may consider as a sentencing factor the disparity created by the 100:1 crack-to-powder cocaine quantity ratio as set forth in the sentencing guidelines. However, we cannot say that the district court committed error, much less plain error, because we have previously held that a district court does not abuse its discretion when it fails to consider the crack/powder sentencing disparity. See United States v. King, 518 F.3d 571, 576 (8th Cir.2008); see also United States v. Roberson, 517 F.3d 990, 995 (8th Cir.2008) (“We do not believe, though, that Kim-brough means that a district court now acts unreasonably, abuses its discretion, or otherwise commits error if it does not consider the crack/powder sentencing disparity.”); United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir.2008) (“Although Kim-brough empowers a district court to consider the disparity between guideline sentences for powder cocaine and crack, it does not require it to do so.”). Therefore, the district court did not abuse its discretion in sentencing Saddler to 322 months’ imprisonment. C. Sixth Amendment Violation Finally, Saddler argues that the district court violated his Sixth Amendment rights because the jury did not determine a key fact that increased the statutory maximum penalty he faced. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury, and proved beyond a reasonable doubt.”). Because Saddler did not raise this constitutional challenge at sentencing, we again review for plain error. See United States v. Conelly, 451 F.3d 942, 944 (8th Cir.2006). Saddler was convicted of conspiracy to distribute and possession with the intent to distribute fifty grams or more of a mixture or substance containing a detectable amount of “cocaine base” in" }, { "docid": "22872010", "title": "", "text": "batch of \"maybe a couple of hundred grams” of cocaine powder into crack. .The Guidelines Drug Quantity Table states that \" 'Cocaine base,' for purposes of this guideline, means 'crack.' ” U.S.S.G. § 2D 1.1 (c)(1), Note (D). . By focusing on the crack cocaine Farris saw Weston manufacture on one occasion, we assume that the government has conceded that the evidence concerning Weston’s manufacturing and/or distribution of any other crack cocaine is too imprecise to enable the sentencing court to properly calculate drug amounts, other than by sheer speculation. . We take no position on the government's claim that on remand the district court should resentence Weston using a Base Offense Level of 34. The district court can best make that determination in the first instance. . In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that ''[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi was not raised as an issue by Weston and was only briefly alluded to at oral argument. However, in an overabundance of caution, we do think that a short discussion of Apprendi is warranted. The superseding indictment charged Weston, Boone, Farris and Jones with conspiring to distribute and possess with intent to distribute more than 5 grams of cocaine base (crack) and more than 200 grams of cocaine contrary to 21 U.S.C. § 841(a)(1) in violation of 21 U.S.C. § 846. As noted above, the government filed an enhanced penalty information against Weston, pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851(a)(1). That information referenced a 1992 state felony conviction for possession of crack cocaine with intent to distribute, and Weston does not now challenge that enhancement. As a consequence of his conviction, Weston faces a possible statutory maximum penalty of life imprisonment. See 21 U.S.C. § 841(b)(1)(B) (\"If any person commits such a violation [of § 841(a)] after a prior conviction for a felony drug offense" }, { "docid": "9700853", "title": "", "text": "PER CURIAM. In our opinion reported at 207 F.3d 910 (7th Cir.2000), we affirmed the conviction of Jackson and his codefendants (who are not involved in the current proceeding) but remanded with instructions to the district court to resentence Jackson because the court had erred in applying a sentencing guideline to his role in the overall offense. Before he could be resentenced, the Supreme Court granted his petition for certiorari, vacated our decision, and remanded the case to us (— U.S. — , 121 S.Ct. 376, 148 L.Ed.2d 290 (2000)) for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Decided after our decision, Apprendi holds that any fact other than the fact of a prior conviction that increases the penalty for an offense beyond the statutory maximum penalty for that offense is an element of the crime and so must be submitted to the jury and proved beyond a reasonable doubt. Id. at 2362-63. Jackson received a sentence of 30 years on the basis of the sentencing judge’s determination that his offense had involved at least 5 grams of crack cocaine. 21 U.S.C. § 841(b)(1)(B). The maximum would have been 20 years had no determination of quantity been made, § 841(b)(1)(C), and since the jury had not been asked to determine quantity, the higher sentence violated the rule declared in Apprendi. But since Jackson had not raised in the district court the issue later decided by Apprendi, he can obtain the benefit of that decision only if the sentencing of him in disregard of it was a plain error. (The applicability of the plain-error standard to Apprendi errors is established in this circuit by our recent decision in United States v. Nance, 236 F.3d 820, 824-25 7th Cir.2000).) Plain it was in the sense of clear, as is apparent now that Apprendi has been decided, which is the relevant time for appraising plainness in the sense of clarity. Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). But to prevail under the plain-error standard," }, { "docid": "2629776", "title": "", "text": "90 days of enactment, ie., by November 1, 2010. Section 9 requires the Commission to report to Congress within one year concerning the effectiveness of drug court programs. Section 10 requires a five-year report from the Commission on the impact of changes made by the Fair Sentencing Act and the attendant Guideline amendments. Thus, the new law contains significant ameliorating provisions, modest penalty increases and some urgency. It has already caused the Commission to issue amended, emergency guidelines, including amendments that reduce the base offense levels for various quantities of crack cocaine, all effective November 1, 2010. The quantity amendments are based explicitly upon the Fair Sentencing Act’s new mandatory minimum sentences. They will apply to all offenders sentenced after November 1, 2010, even if those offenders committed their offenses before August 3, 2010. Not surprisingly, the Fair Sentencing Act emerged out of compromise. The bill that Senator Durbin introduced in the Senate would have created a 1:1 ratio, but the outcome was 18:1. The Act significantly lowers crack sentences, but it also increases penalties for certain conduct. Another subject of debate was whether the new penalties should apply retroactively to those already sentenced and in prison, as the Commission’s 2007 amendments had done. The decision was no. But the statute itself contains no provision stating in so many words either that it applies to all sentencings going forward, or that it applies only to criminal conduct that occurs after its effective date. Ex Post Facto Clause The Constitution’s ex post facto clause, Art. 1, § 9, cl. 3, “forbids the application of any law or rule that increases punishment to preexisting criminal conduct.” Thus, the new enhancements in the Fair Sentencing Act of 2010 cannot be applied if they result in a harsher penalty for someone who had already committed the crime. But the ex post facto clause does not prohibit retroactive change that lightens penalties, as does the changed crack/powder ratio. And there is no legal impediment if sentencing amendments, taken as a whole, result in no harsher punishment to a particular defendant. Thus, the ex post facto" }, { "docid": "22135416", "title": "", "text": "OPINION OF THE COURT FUENTES, Circuit Judge: This appeal requires us to apply the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to a drug conspiracy sentence. At sentencing, the trial court, adhering to established law and custom, itself decided the issue of drug quantity under a preponderance of the evidence standard. Based largely on this finding, the court sentenced appellant, Alex Vazquez, to a prison term of 292 months (24 years and 4 months), which exceeded, by over 4 years, the statutory maximum authorized by the jury’s factual findings. Subsequently, the Supreme Court held in Apprendi that a criminal defendant’s constitutional rights are violated when his prescribed statutory maximum penalties are increased by any fact, other than a prior conviction, that a jury does not find beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Vazquez now challenges his sentence contending that, because the court did not submit the issue of drug quantity to the jury for determination, he must be resentenced in accordance with the default 20-year statutory maximum sentence that applies to cocaine offenses of unspecified drug quantity. Vazquez did not contest the drug quantity evidence at any stage of the proceedings. As a result, our review is for plain error. We conclude that Vazquez’s sentence violated Apprendi, and therefore, the failure to submit drug quantity to the jury, and the imposition of a prison term in excess of 20 years, was erroneous. Nonetheless, because we remain confident that a rational jury would have found, beyond a reasonable doubt, the drug quantities that the judge found, we conclude that Vazquez is not entitled to plain error relief and we will therefore affirm his sentence. I. The relevant facts are largely undisputed. On February 27, 1998, after a lengthy investigation, law enforcement authorities seized a quantity of powder cocaine and crack cocaine from a rooming house in Columbia, Pennsylvania. Vazquez’s fingerprint was on one of the bags in which the cocaine had been stored. The next day, officers executed a search warrant at Vazquez’s residence. There," }, { "docid": "23093267", "title": "", "text": "were minors and he knew that he was using and employing them to avoid detection of drug offenses. Put another way, it is difficult to see how he could knowingly but unintentionally “use” and “employ” a minor in these drug offenses. Consequently, we find that where a jury instruction includes the mens rea term “knowingly” but errantly omits the word “intentionally,” that jury instruction is not so flawed as to work substantial injustice, at least where the instruction also uses the words “employ” and “use.” E. Apprendi Arguments In Apprendi v. New Jersey, the Supreme Court held that any fact, other than a prior conviction, “that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). All defendants, except Stevenson, argue that the sentences they received violated Apprendi because the trial judge, rather than the jury, determined the amount of drugs involved for sentencing purposes. Only Santana raised the Apprendi issue below, so his challenge is reviewed de novo; the rest of the defendants’ arguments on this issue will be reviewed for plain error. We ultimately reject all defendants’ Apprendi claims, but we will address them in three separate groups given the different standards of review and the different reasons for affirming their sentences. 1. Santana’s Apprendi Claim In the parts relevant to this case, the federal narcotics statute first lists that the “unlawful acts” covered include knowingly or intentionally possessing drugs with the intent to distribute them. 21 U.S.C. § 841(a). Section (b) of the statute then sets different maximum and minimum penalties that vary primarily on the basis of the quantity and type of the drugs involved. 21 U.S.C. § 841(b). When, as here, crack cocaine is the drug of conviction, section (b) provides for the following sentences: Section 841(b)(1)(A): persons committing offenses involving 50 or more grams of crack cocaine shall receive a minimum of 10 years imprisonment and a maximum of life; and if the defendant has a prior felony drug conviction" }, { "docid": "23686451", "title": "", "text": "the evidence. The study acknowledged that the White House Office of National Drug Control Policy had previously described the purity of street-level methamphetamine at approximately 50% or more, but it explained that more recent information suggests that purity levels have dropped to around 30%. ROA Vol. 3, Ex. 433 at 15 n. 41 (No. 00-3292). We reject James’ argument. Because the defendants’ failure to satisfy the discriminatory effect prong is fatal to their attempt to obtain discovery on their selective prosecution claims, see Armstrong, 517 U.S. at 470, 116 S.Ct. 1480, we need not consider whether their evidence tends to show discriminatory intent. The district court properly denied discovery. III. Defendant Davis raises three additional arguments on appeal. He contends (1) that 21 U.S.C. § 841 is unconstitutional on its face; (2) that the jury should have been given a lesser included offense instruction; and (3) that his sentence should have been reduced based on his acceptance of responsibility. A. Davis first argues that the recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), rendered 21 U.S.C. § 841 facially unconstitutional. Because he did not raise this argument in the district court, our review is for plain error. United States v. Svacina, 137 F.3d 1179, 1186 (10th Cir.1998). Under this standard, reversal is warranted only when there is: (1) an error; (2) that is plain or obvious; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Hishaw, 235 F.3d 565, 574 (10th Cir.2000). However, we apply this rule less rigidly when reviewing a potential constitutional error. United States v. Easter, 981 F.2d 1549, 1557 (10th Cir.1992). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Applying that rule, the Apprendi Court struck down as a violation of the Due Process" }, { "docid": "12172762", "title": "", "text": "that he sold to Agent Ellison because Detective Teutónico did not place the crack cocaine in a sealed evidence bag. The record reflects, however, that Detective Teutónico segregated the contraband at the scene, and the government’s evidence carefully traced the path of Cannon’s crack cocaine as the police submitted it to the state lab on three occasions prior to trial. There was little possibility of commingling; crack and powder cocaine bear little physical resemblance to each other, and Teutónico marked the evidence at the scene. The drugs remained in official custody at all times, and there is no evidence of tampering, so we may presume that the evidence was properly handled. United States v. Boykins, 9 F.3d 1278, 1285 (7th Cir.1993). Regardless, a break in the chain of custody goes to the weight of the evidence, not its admissibility. United States v. Williams, 44 F.3d 614, 618 (7th Cir.1995). We find no error, let alone plain error. Cannon’s final argument is one pertaining to his mandatory minimum sentence, and this circuit’s case law readily disposes of it. By special verdict the jury found Cannon guilty beyond a reasonable doubt of distributing at least 5 but less than 50 grams of cocaine base, subjecting him to a prison term of 5 to 40 years. The district court, however, found by a preponderance of the evidence that Cannon delivered 54 grams, thus triggering the mandatory minimum sentence of 10 years under 21 U.S.C. § 841(b)(1)(A). That judicial fact-finding, Cannon suggests, violated his Sixth Amendment right to a jury trial. The Supreme Court held in Harris v. United States that the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply to facts triggering a statutory minimum sentence when that minimum would not exceed the maximum sentence allowable under the jury’s verdict. Harris, 536 U.S. at 557, 122 S.Ct. 2406. In other words, a judge may use the preponderance standard to find facts that increase a defendant’s sentence when those facts do no more than raise a statutory minimum. We have repeatedly rejected arguments" }, { "docid": "23077243", "title": "", "text": "defendants convicted of powder cocaine offenses, even though the drugs were essentially the same substance. See generally Knoll D. Lowney, Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws?, 45 Wash. U.J. Urb. & Contemp. L. 121 (1994). The Sentencing Commission identified major problems with the crack/powder disparity, namely that the assumptions regarding violence and addictiveness were unfounded, that it did not effectively punish major drug traffickers, and that it imposed severe sentences primarily upon African-American offenders. See Kimbrough, 552 U.S. at 98, 128 S.Ct. 558 (summarizing the Sentencing Commission’s efforts to alter 100:1 crack/powder disparity). Prior to Dixon’s sentencing hearing, however, Congress passed the FSA, and it became law when the President signed it on August 3, 2010. See Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1151 n. 1 (3d Cir.1989) (“Where no specific effective date is provided, the provision or statute becomes effective upon the date the president signs the bill.”). Congress described the FSA as “[a]n Act To restore fairness to Federal cocaine sentencing.” Fair Sentencing Act of 2010, Pub.L. 111-220, § 2, 124 Stat. 2372, 2372 (2010). The FSA reduced the crack/powder ratio to approximately 18:1. According to the Act, the five-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses twenty-eight grams and the ten-year mandatory minimum penalty for possessing crack cocaine is not triggered until a person possesses 280 grams (the triggers for powder cocaine remain 500 grams and 5,000 grams, respectively). Id. Recognizing the need to connect the new mandatory minimum penalties with the Sentencing Guidelines, Section 8 of the Act vests the Sentencing Commission with emergency authority to: (1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the date of enactment of this Act ... and (2) pursuant to the emergency authority provided under paragraph (1), make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law." } ]

[ { "docid": "22681845", "title": "", "text": "that this respondent was stigmatized, because the District Court’s contrary finding was not clearly erroneous. Third, I would remand the case to the Court of Appeals to consider the claim that respondent had a property interest in his job, since that court did not decide this issue. I The Court holds that respondent’s failure to allege falsity negates his right to damages for the State’s failure to give him a hearing. This holding does not appear to rest on the view that a discharged employee has no right to a hearing unless the charge against him is false. If it did, it would represent a radical departure from a principle basic to our legal system — the principle that the guilty as well as the innocent are entitled to a fair trial. It would also be a departure from Board of Regents v. Roth, 408 U. S. 564, 572-575. In that case the Court concluded that a person is deprived of liberty when the State’s refusal to rehire him destroys his “good name” in the community or forecloses him from practicing his profession. A hearing may establish that such a deprivation of liberty is warranted because the charges are correct. But Bishop v. Wood, 426 U. S. 341, 349, makes it clear that the truth or falsity of the charge “neither enhances nor diminishes [the employee’s] claim that his constitutionally protected interest in liberty has been impaired.” If the charge, whether true or false, involves a deprivation of liberty, due process must accompany the deprivation. And normally, as Both plainly states, the Constitution mandates “a full prior hearing.” 408 U. S., at 574. This hearing must include consideration of whether the charge, if true, warrants discharge. The discharge itself is part of the deprivation of liberty against which the employee is entitled to defend. Release of unfavorable information can damage an employee’s reputation and employment prospects, but far greater injury is caused by an official determination, based on such information, that the employee is unfit for public employment. Indeed the Court has held that an injury to reputation had not" } ]

[ { "docid": "7788586", "title": "", "text": "v. Walker, 542 F.2d 969, 972-73 (7th Cir.1976) (same), cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977); see also infra note 18 (collecting cases). In Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1979), moreover, the Supreme Court unmistakeably indicated that Paul does not bar a liberty interest claim by a discharged government employee who does not enjoy a property right to continued employment. In Owen, a nontenured city employee brought a liberty interest claim against the city and various city officials after he was discharged amidst stigmatizing allegations of impropriety. The Owen plaintiff did not enjoy any property interest in continued employment or any procedural protection from an “at-will” discharge. See id. at 630 n. 10, 631, 100 S.Ct. at 1405 n. 10. Nonetheless, the Court found no merit in the government’s contention that the employer could not state a claim under the liberty clause. Wisconsin v. Constantineau, 400 U.S. 433, 437 [91 S.Ct. 507, 510, 27 L.Ed.2d 515] (1971), held that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” In Board of Regents v. Roth, 408 U.S. 564, 573 [92 S.Ct. 2701, 2707, 33 L.Ed.2d 548] (1972), we explained that the dismissal of a government employee accompanied by a “charge against him that might seriously damage his standing and associations in his community” would qualify as something “the government is doing to him,” so as to trigger the due process right to a hearing at which the employee could refute the charges and publicly clear his name. In the present case, the [city’s] accusations received extensive coverage in the press and even if they did not in point of fact “cause” petitioner’s discharge, the defamatory and stigmatizing charges certainly “occur[red] in the course of the termination of employment. ” Cf. Paul v. Davis, 424 U.S. 693, 710 [96 S.Ct. 1155, 1165, 47 L.Ed.2d 405] (1976). Yet the city twice refused petitioner’s request that he be given" }, { "docid": "3417515", "title": "", "text": "procedures it followed in discharging Robison meet the minimum requirements of due process and the trial court did not err in refusing to hear evidence on Robison’s First Amendment claim. IV. For purposes of this appeal, we may assume without deciding that Wichita is in fact a public body subject to Fourteenth Amendment standards. We must now decide whether the procedures Wichita employed in discharging Robi-son conform with minimum requirements of due process. Employees discharged from public employment are not categorically entitled to a pre-termination hearing. A hearing is constitutionally required, however, when the stated reason for a public employee’s discharge is an allegation that he is guilty of immoral or dishonest conduct or other behavior that might tend to stigmatize him or to lower his standing in the eyes of the community. Birnbaum v. Tussell, 2 Cir. 1966, 371 F.2d 672. An employee who is discharged because of allegedly dishonest conduct has an interest in his reputation as well as in continued employment. These two interests must be distinguished for purposes of the hearing requirement. The Supreme Court stated the relevant standard in Board of Regents of State Colleges v. Roth, 1972, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548: “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” A non-tenured employee who has no expectation of continued employment may not be entitled to a hearing merely for the sake of retaining his employment, but he will be entitled to a hearing for the narrow purpose of vindicating his reputation. As the Supreme Court has said, “The purpose of such notice and hearing is to provide the person with an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other purposes”. Board of Regents of State Colleges v. Roth, 1972, 408 U.S. 564, 573, fn 12, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. Wichita accused Robison" }, { "docid": "18438296", "title": "", "text": "subpoenaed and the case, in effect, tried. Unfortunately, as indicated, that board was in effect abolished by the Arkansas Supreme Court, but that fact in no way limits or removes the employer’s obligation to provide a meaningful hearing providing the employee with the due process of law required by the United States Constitution. In short, plaintiff Hogue was, under the cases discussed above, entitled to a due process hearing because both a liberty interest and a property interest were involved in his termination. He was not provided such hearing and is, thus, entitled to the remedies afforded by law. Remedy. What remedy is this court required to provide? The court believes that question was answered in Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir.1973), the court whose decisions are binding on this one. In that case, the district court held that a fired teacher of a junior college was entitled to a name-clearing hearing and did not receive one at the time of his termination. However, the court further held that a hearing, at that late date, would accomplish nothing, and refused to order one. In reversing in part, the court of appeals stated: Wellner was improperly discharged because he was not accorded an appropriate hearing. His termination was therefore a nullity and he remains on the payroll until a proper hearing is held, at which time he may be retained or not reappointed. It is not within our province to speculate that after a proper hearing clearing his reputation the Board will recommend that Wellner not be reappointed, or that the appropriate official will not reappoint him to a similar teaching position. In any event, Wellner remains on the payroll and is entitled to receive the wages he will have earned until his name is cleared by proper Board action and the decision is properly made with respect to whether he will be reappointed. However, any award shall be reduced by interim earnings he may have derived from other employment. Thus, as the court understands the holding in the Wellner case, supra, it must find," }, { "docid": "22778302", "title": "", "text": "not have a property right to continued employment. It noted, however, that had the University defamed the professor in the course of declining to rehire him, it would have deprived the professor of a liberty interest. Id. at 573, 92 S.Ct. 2701'. It came to this conclusion despite the fact that the professor lacked a property interest in his job. The Court in Paul v. Davis — and then in later opinions — impliedly endorsed this conclusion. 424 U.S. at 709-710, 96 S.Ct. 1155. See also Siegert, 500 U.S. at 233, 111 S.Ct. 1789; Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Though it has never again taken this issue on directly, the Court in subsequent opinions has reiterated that the “plus” in “stigma-plus” claims arising out of public employment decisions, may be loss of a job in which the plaintiff held no property interest under state law. In Owen, the Eighth Circuit had held that the police chief petitioner “possessed no property interest in continued employment,” but that allegedly false accusations the city made incident to his discharge “had blackened petitioner’s name and reputation, thus depriving him of liberty without due process of law.” 445 U.S. at 631, 100 S.Ct. 1398. Citing Roth and Paul v. Davis, the Supreme Court held that it had “no doubt that the Court of Appeals” was correct in this conclusion. Id. at 633 n. 13, 100 S.Ct. 1398. Similarly, in Codd v. Velger, the Court stated that “where a non-tenured employee has been stigmatized in the course of a decision to terminate his employment,” he is entitled to a name-clearing hearing. 429 U.S. at 627, 97 S.Ct. 882. We, too, have never clearly answered the question whether termination from a government job constitutes a sufficient “plus” under the “stigma-plus” test when, as a matter of state law, the plaintiff lacked a property interest in retaining the job. On at least one occasion we have suggested that it might. See McKnight v. SEPTA, 583 F.2d 1229, 1235-1242 (3d Cir. 1978) (holding that a complaint" }, { "docid": "7788578", "title": "", "text": "(1970); Logan v. General Fireproofing Co., 521 F.2d 881, 884 n. 3 (4th Cir.1971); Sapp v. Renfroe, 511 F.2d 172, 176 n. 3 (5th Cir.1975). A district court should not grant a Rule 12(b)(6) motion to dismiss for failure to seek the technically appropriate remedy when the availability of some relief is readily apparent on the face of the complaint. Here, the complaint and the motion for dismissal clearly demonstrated that Doe could prove a set of facts that would entitle her to some form of relief — namely a hearing to clear her name. The proper course of action at that point was to grant the plaintiff leave to amend her complaint in order to seek such a hearing or to read such a hearing request into the prayer for “other appropriate relief.” We therefore vacate the district court’s dismissal of Doe’s reputational liberty interest claim against the Department for failure to seek the appropriate remedy. B. Doe’s Liberty Interest in Reputation By dismissing Doe’s liberty interest claim against the Department on technical grounds, the district court avoided the prickly question of whether the DOJ’s actions infringed Doe’s constitutionally protected liberty interest in professional reputation. Taking the plaintiff’s factual allegations as true, we now find that the stigmatizing nature of the Department’s charges, her discharge, and the subsequent foreclosure of future employment opportunities, including government job opportuni ties, combined to deprive Doe of a constitutionally protected liberty interest in reputation without due process. The district court rightly noted that: A government employee’s liberty interests are implicated where in terminating the employee the government “make[s] any charge against him that might seriously damage his standing and associations in the community” or “impose[s] on him a stigma or other disability that fore-elose[s] his freedom to take advantage of other employment opportunities.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). Opinion at 5; see also Bishop v. Wood, 426 U.S. 341, 348-49, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1967). In Roth, the Court ruled that the mere failure to rehire a non-tenured" }, { "docid": "587671", "title": "", "text": "rights. Paul, supra, 424 U.S. at 701, 710 n.5, 96 S.Ct. at 1160, 1165 n.5. Subsequent to Paul, the Supreme Court in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) made explicit what already was apparent from the structure of the Paul opinion: that injury to reputation in connection with an official discharge from employment was a cognizable federal claim. In Owen the Court stated: Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971), held that “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” In Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), we explained that the dismissal of a government employee accompanied by a “charge against him that might seriously damage his standing and associations in his community” would qualify as something “the government is doing to him,” so as to trigger the due process right to a hearing at which the employee could refute the charges and publicly clear his name. In the present case, the city — through the unanimous resolution of the City Council — released to the public an allegedly false statement impugning petitioner’s honesty and integrity. Petitioner was discharged the next day. The Council’s accusations received extensive coverage in the press, and even if they did not in point of fact “cause” petitioner’s discharge, the defamatory and stigmatizing charges certainly “occur[red] in the course of the termination of employment.” Cf. Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976). Yet the city twice refused petitioner’s request that he be given written specifications of the charges against him and an opportunity to clear his name. Under the circumstances, we have no doubt that the Court of Appeals correctly concluded that the city’s actions deprived petitioner of liberty without due process of law. Owen, supra, 445 U.S. at 633 n.13, 100 S.Ct. at 1406 n.13. Shortly" }, { "docid": "13620923", "title": "", "text": "684 (1976); Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971); Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216 (1952). We have held that public officials do not act improperly in publicly disclosing charges against discharged employees, but they must thereafter afford procedural due process to the person charged. In re Selcraig, 705 F.2d 789, 798 (5th Cir.1983). Moreover, the process due such an individual is merely a hearing providing a public forum or opportunity to clear one’s name, not actual review of the decision to discharge the employee. Roth, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12. If a government employer discharges an individual under circumstances that will do special harm to the individual’s reputation and fails to give that individual an opportunity to clear his name, however, the individual may recover monetary damages under § 1983 for the deprivation of his liberty under the Fourteenth Amendment. Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406 n. 13, 63 L.Ed.2d 673 (1980). To succeed on this § 1983 claim for the denial of a name-clearing hearing, the employee must prove the following: that he was discharged, that defamatory charges were made against him in connection with the discharge, that the charges were false, that no meaningful public hearing was conducted pre-dis-charge, that the charges were made public, that he requested a hearing in which to clear his name, and that the request was denied. The city argues that the plaintiff did not request a hearing. It is undisputed, however, that Rosenstein requested access to the police department’s established appeal procedure to contest the charges. On May 10, 1985, Rosenstein wrote to the Dallas City Manager that “I was fired from the Dallas Police Department for something that I did not do,” and" }, { "docid": "16766687", "title": "", "text": "ordinarily suffices to “satisfy the publication requirement”). By describing a version of events that differs significantly from Hart’s determination that she had abused DM, Burns sufficiently alleges a “factual dispute” from which the falsity of Hart’s allegations can be inferred. Docket No. 17 at ¶¶ 51-62; Codd, 429 U.S. at 627, 97 S.Ct. 882. The “plus” prong of the “stigma-plus” analysis typically presents a more difficult question. A property interest that independently enjoys due process protection constitutes a sufficient “plus” to bring one’s interest in preserving his or her “good name, reputation, honor, or integrity” within the ambit of the “liberty” protected by the Due Process Clause when a state-occasioned deprivation of that property interest is accompanied by governmental defamation. Dee v. Borough of Dunmore, 549 F.3d 225, 234 (3d Cir.2008). Nevertheless, it is not always necessary for a plaintiff to allege the deprivation of an interest entitled to independent due process protection in order to establish the existence of a reputation-based “liberty interest.” Owen v. City of Independence, 445 U.S. 622, 633, n. 13, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (explaining that “the due process right to a hearing” is triggered when the dismissal of a government employee with no property interest in his or her position is accompanied by charges or allegations that might seriously damage his or her standing and associations in the relevant community); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (suggesting that where the state-occasioned deprivation of a government job to which an individual has no claim of entitlement imposes on him or her “a stigma or other disability that fore-closets] his [or her] freedom to take advantage of other employment opportunities,” the Due Process Clause is implicated); Hill, 455 F.3d at 238 (holding that “a public employee who is defamed in the course of being terminated or constructively discharged satisfies the stigma-plus’ test even if, as a matter of state law, he [or she] lacks a property interest in the job [that] he [or she] lost”). Burns alleges that she had constitutionally-protected property interests" }, { "docid": "22576220", "title": "", "text": "Donato go to the heart of her professional competence and damage her professional reputation to such an extent as to severely impede her ability to continue in the education field in a supervisory capacity. As a consequence, the defendant District deprived plaintiff of a liberty interest. C. Remedy Because plaintiff was deprived of liberty without due process of law, we now consider what process is due. Since due process is a flexible notion, the procedural protection accorded a constitutional interest is determined by reference to the particular circumstances of a given case. See Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). The Supreme Court teaches that when a government employee is dismissed for stigmatizing reasons that seriously imperil the opportunity to acquire future employment, the employee is entitled to “an opportunity to refute the charge.” Roth, 408 U.S. at 573 & n. 12, 92 S.Ct. at 2707 & n. 12; see also Codd, 429 U.S. at 627, 97 S.Ct. at 883; Baden, 799 F.2d at 832. A hearing must be held for the limited purpose of giving a discharged employee an opportunity to clear her name. A name-clearing hearing significantly reduces the risk that an employee will be dismissed with false stigmatizing charges placed in her personnel file. Even if § 3031 had provided Donato an opportunity to present written comments, such a remedy is insufficient under Roth and Codd to satisfy the requirement of a name-clearing hearing. The employer need not rehire the employee even if she can prove the inaccuracy of the stigmatizing allegations. See Roth, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12.. But, when and if the allegations are shown to be false, their removal from the employee’s file restores her freedom to seek future employment. Donato did not receive a name-clearing hearing. The district court, on remand, should ensure that such a hearing is accorded her. The task of directing the fair hearing is confided in the district court and that hearing must of course conform to the requirements of due process. See Goldberg" }, { "docid": "515854", "title": "", "text": "to find future employment. Id. at 9. The charges were publically disseminated when the December 15 Press Statement was released to the local media in Osage Beach. Id. Hammer also repeatedly denied the truth of the allegations in the December 15 Press Statement. Id. Therefore, the district court correctly held as a matter of law that Hammer was entitled to an opportunity to clear his name. Codd, 429 U.S. at 627, 97 S.Ct. 882 (once a claim of stigmatization is properly made under Roth, plaintiff must be given an opportunity to clear his or her name). See also Johnson v. Rogers, 621 F.2d 300, 306 (8th Cir.1980) (deprivation of liberty interest found where news release issued by the county sheriff in connection with the plaintiffs termination accused her of wrongdoing, damaged her reputation, and the plaintiff denied the charges). Hammer maintains that he received insufficient notice of the reasons for his termination and that the hearing he received was not a proper name-clearing hearing. We disagree. The December 15 Press Statement, despite the fact that it was issued nearly a month before Hammer was terminated, contained statements that were “clearly made in connection with the Plaintiffs subsequent discharge.” Slip op. at 8. In other words, Hammer cannot genuinely dispute the fact that he received sufficient notice of the reasons his employment was terminated. Moreover, the Board was not required to reconsider its decision to terminate Hammer in order for the hearing to pass constitutional muster. See Codd, 429 U.S. at 627, 97 S.Ct. 882 (“[T]he hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely ‘to provide the person the opportunity to clear his name.’ ”) (quoting Roth, 408 U.S. at 573 n. 12, 92 S.Ct. 2701). All that is required is that the aggrieved party be offered a chance to refute the charges against him or her. Id. The February 7, 2000, hearing fulfilled the limited purpose of clearing Hammer’s name, and did not need to preserve Ms interest in his job. Roth, 408 U.S. at 573 n." }, { "docid": "978182", "title": "", "text": "province to speculate that after a proper hearing clearing his reputation the Board will recommend that Well-ner not be reappointed, or that the appropriate official will not reappoint him to a similar teaching position. In any event, Wellner remains on the payroll and is entitled to receive the wages he will have earned until his name is cleared by proper Board action and the decision is properly made with respect to whether he will be reappointed. [487 F.2d at 157.] As we have noted, Owen’s age bars him from qualifying to serve further as chief of police, so vindication of his good name could not restore Owen to this job at this time. Moreover, in light of the findings by the district court that the city manager, prior to April 17,1972, had decided to discharge plaintiff for reasons which apparently did not relate to Owen’s honesty or integrity, a full backpay remedy would afford Owen a windfall at the expense of the municipality and the municipal taxpayers. A person deprived of constitutional rights by the Government is entitled to relief only to the extent of the harm sustained, Codd v. Velger, supra, 429 U.S. at 628, 97 S.Ct. at 884; to the extent that the constitutional violation causes no injury, no remedy is called for, Mt. Healthy City School District v. Doyle, supra, 429 U.S. at 285, 97 S.Ct. at 575. Thus, in its remedial aspects, this case can be distinguished from Wellner, for there one could not say whether or not the discharged employee would have retained his job after a public hearing. However, merely to order that the City now give Owen a hearing would amount to no relief at all. Although Owen would not have remained chief of police even after a hearing, it seems likely that he was still employable in the law enforcement field and that Roberts’ charges adversely affected Owen’s employability. The record discloses that the city manager did offer Owen a different position with the City when Owen’s resignation was demanded. In addition, he did work at some other security jobs during the" }, { "docid": "15117479", "title": "", "text": "not entitle the employee to reinstatement, it merely means he should be informed of the reasons for firing and be given an opportunity to challenge them. Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). “Because plaintiff has not shown he is entitled to reinstatement and because he has not alleged any damage to his reputation or ability to pursue a profession that was due to the hearing not being given at the time of firing, there are no grounds for an award of damages. Plaintiff also has not cited any authority in support of his request for attorney’s fees. Plaintiff’s petition for assessment of damages and attorney’s fees is denied. Defendant’s motion for partial summary judgment is granted.” We affirm. The district court did not order the Cook County Department of Public Aid to give plaintiff a hearing to protect a property interest in his employment but to give him the “opportunity to clear his name” as specified in Board of Regents v. Roth, 408 U.S. 564, 573, n. 12, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. If plaintiff had cleared his name at the administrative hearing, his employer would have “remain [ed] free to deny him future employment for other reasons.” Idem. Had the reason for his discharge been one that did not impugn his good name, he would not have been entitled to any hearing at all. Therefore, back pay would not be the proper measure of damage; pay is simply not the interest this hearing was intended to protect. Plaintiff relies principally on Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966). That case held that whenever a substantial interest is involved, such as reputation or the ability to pursue a profession effectively, a public employee may not be removed on arbitrary grounds or without a procedure “calculated to determine whether legitimate grounds [for the discharge] do exist.” 371 F.2d 678 and n. 13. Plaintiff emphasizes the statement that 42 U.S.C. § 1983 affords “a right of action for injuries suffered in consequence of a denial of such a hearing.” Id." }, { "docid": "6403653", "title": "", "text": "“The purpose of the due process hearing to which [plaintiff] was entitled was not to afford an opportunity to recapture [her] previous employment but simply to ‘clear [her] name.’ ” Dennis v. S & S Consolidated Rural High School District, 577 F.2d 338, 344 (5th Cir. 1978) (quoting Board of Regents v. Roth, 408 U.S. at 573 n.12, 92 S.Ct. at 2707 n.12). See Davis v. Oregon State University, 591 F.2d 493, 496 (9th Cir. 1978); Graves v. Duganne, 581 F.2d 222, 224 (9th Cir. 1978). Defendants’ failure to provide plaintiff with the chance to clear her name is not enough, standing alone, to justify reinstatement. [T]he contemplated hearing does not embrace any determination analogous to the “second step” of [a] parole revocation hearing, which would in effect be a determination whether or not, conceding that the report were true, the employee was properly refused re-employment. [Absent a] property interest in continued employment, the adequacy or even the existence of reasons for failing to rehire [her] presents no federal constitutional question. Codd v. Velger, 429 U.S. at 628, 97 S.Ct. at 884 (footnote omitted). Plaintiff believes that we read the Codd damning language too broadly — that the “contemplated hearing” refers only to the proper pre-termination hearing to which she was entitled and that a post-termination hearing involves different considerations. She insists that, having received no pre-termination hearing, only reinstatement can make her whole. We cannot agree with plaintiff’s argument. Compensatory damages, together with appropriate equitable relief, will adequately recompense plaintiff for any harm caused by the procedural deficiencies. Plaintiff’s theory would potentially convert the propriety — as opposed to the procedural adequacy — of all stigmatizing discharges into precisely what Codd says they are not: federal constitutional questions. Although we reject plaintiff’s broad theory that reinstatement is necessary to remedy a termination involving an infringement of liberty, the district court’s blanket statement — that “reinstatement is an inappropriate remedy to apply in a stigma-type liberty case where no property or First Amendment issues are involved,” Record, vol. 1, at 110 — is also too sweeping. If the plaintiff can" }, { "docid": "23446119", "title": "", "text": "associations in his community would qualify as something the government is doing to him so as to trigger the due process right to a hearing during which the employee could refute the charges and publicly clear his name. Even if the accusations did not in point of fact cause the individual’s discharge, the defamatory and stigmatizing charges implicate the liberty interests if they occurred in the course of the termination of employment). . What is \"public\"? See Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406 n. 13, 63 L.Ed.2d 673 (1980) (Extensive coverage in the press is public); Codd v. Velger, 429 U.S. at 628, 97 S.Ct. at 884 (Creation and dissemination of a false and defamatory impression about the employee is public). Compare Bishop v. Wood, 426 U.S. 341, 347, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976) (Neither private oral communications nor written answers to interrogatories, made in the course of post-termination judicial proceedings are public); Sullivan v. School Board of Pinellas County, 773 F.2d 1182 (11th Cir.1985) (In situations where the government does not voluntarily make charges or allegations against an employee, but the employee requests that the reasons for her nonre-newal be articulated and aired, the allegations and charges are not public); Sims v. Fox, 505 F.2d 857, 864 (5th Cir.1974) cert. denied 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975) (The presence of derogatory information in confidential files is not public). . See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) (If the state imposes a stigma or other disability on an individual which forecloses his freedom to take advantage of other employment opportunities, then the liberty interest is implicated). . See Wisconsin v. Constantineau, 400 U.S. at 437, 91 S.Ct. at 510 (When protected interests are implicated, the right to some kind of prior hearing is paramount.... [t]he right to be heard prior to being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal" }, { "docid": "23157347", "title": "", "text": "before us. I A Insofar as the court determines that the “stigmatization - or - foreclosure - of - future - employment” instruction was erroneous, I agree. Although the majority uses “and” in its statement of the proper rule, the opinion does not hold that the terminated employee must prove both stigmatization and foreclosure of future employment. I would give the district courts more guidance on this issue, however, than does the majority. Parsing the relevant statements in the United States Supreme Court cases I am satisfied that “stigmatization” sufficient to warrant recovery occurs when a charge might “seriously” damage the discharged employee’s community standing and associations — e.g., dishonesty or immorality. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). While Roth also mentions charges that put the employee’s “good name, reputation, honor, or integrity” at stake, id., clearly it is speaking in terms of a high level stigma that might affect future employment opportunities. See Paul v. Davis, 424 U.S. 693, 697, 96 S.Ct. 1155, 1158, 47 L.Ed.2d 405 (1976); Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976); Codd v. Vel-ger, 429 U.S. 624, 630, 97 S.Ct. 882, 885, 51 L.Ed.2d 92 (Brennan, J., dissenting) (1977), id. at 633, 637-38, 97 S.Ct. at 887, 889 (Stevens, J., dissenting); Owen v. City of Independence, 445 U.S. 622, 661-62, 100 S.Ct. 1398, 1420-21, 63 L.Ed.2d 673 (Powell, J., dissenting) (1980) (The pivotal question after Roth is whether the charges “so blackened the employee’s name as to impair his liberty interest in his professional reputation.”). Charges are not stigmatizing enough to rise to a constitutionally protected liberty interest unless they involve allegations of dishonesty, immorality, or unprofessional or illegal conduct of the type that would be expected to seriously diminish employment opportunities. Charges of poor job performance, negligence, tardiness, or even insubordination, would not rise to the level of a violation of a protected liberty interest. I believe a fair implication from the Supreme Court decisions is that the discharged employee does not have to prove" }, { "docid": "978181", "title": "", "text": "945, 97 S.Ct. 1580, 51 L.Ed.2d 792 (1977); Luke v. American Family Mut. Ins. Co., 476 F.2d 1015 (8th Cir.) (en banc), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973). Accordingly, we reject Owen’s contention that he possessed a property interest in continued employment as chief of police of the City of Independence. IY. Remedy. We held in Wellner v. Minnesota State Jr. College, 487 F.2d 153 (8th Cir. 1973), that when an untenured employee of a state agency is, upon discharge, stigmatized by the release of defamatory information by his employer and denied the right to clear his name in a public hearing, that employee is entitled to a judgment including lost wages, but not actual reinstatement. In that case we said: Wellner [the state employee] was improperly discharged because he was not accorded an appropriate hearing. His termination was therefore a nullity and he remains on the payroll until a proper hearing is held, at which time he may be retained or not reappointed. It is not within our province to speculate that after a proper hearing clearing his reputation the Board will recommend that Well-ner not be reappointed, or that the appropriate official will not reappoint him to a similar teaching position. In any event, Wellner remains on the payroll and is entitled to receive the wages he will have earned until his name is cleared by proper Board action and the decision is properly made with respect to whether he will be reappointed. [487 F.2d at 157.] As we have noted, Owen’s age bars him from qualifying to serve further as chief of police, so vindication of his good name could not restore Owen to this job at this time. Moreover, in light of the findings by the district court that the city manager, prior to April 17,1972, had decided to discharge plaintiff for reasons which apparently did not relate to Owen’s honesty or integrity, a full backpay remedy would afford Owen a windfall at the expense of the municipality and the municipal taxpayers. A person deprived of constitutional rights by the" }, { "docid": "6403652", "title": "", "text": "nominal damages. In this case, plaintiff has not requested a hearing. Her desire to forgo this avenue of relief should not prejudice her other legitimate claims. C. Reinstatement Ordinarily a governmental decision not to rehire an employee does not deprive that employee of “liberty.” Board of Regents v. Roth, 408 U.S. at 575, 92 S.Ct. at 2708. Because of plaintiff’s untenured status, defendants could properly have refused to renew her contract without providing a hearing or, indeed, without providing any reasons. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. at 2702 (1972). Accordingly, absent a property interest in continued employment, reinstatement is not ordinarily an appropriate remedy for deprivation of a liberty interest. Plaintiff argues, however, that reinstatement is necessary in this case to erase the stigma and to “make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). She contends that reinstatement is proper in a case like this where the damage to reputation and the nonrenewal itself are inextricably linked. “The purpose of the due process hearing to which [plaintiff] was entitled was not to afford an opportunity to recapture [her] previous employment but simply to ‘clear [her] name.’ ” Dennis v. S & S Consolidated Rural High School District, 577 F.2d 338, 344 (5th Cir. 1978) (quoting Board of Regents v. Roth, 408 U.S. at 573 n.12, 92 S.Ct. at 2707 n.12). See Davis v. Oregon State University, 591 F.2d 493, 496 (9th Cir. 1978); Graves v. Duganne, 581 F.2d 222, 224 (9th Cir. 1978). Defendants’ failure to provide plaintiff with the chance to clear her name is not enough, standing alone, to justify reinstatement. [T]he contemplated hearing does not embrace any determination analogous to the “second step” of [a] parole revocation hearing, which would in effect be a determination whether or not, conceding that the report were true, the employee was properly refused re-employment. [Absent a] property interest in continued employment, the adequacy or even the existence of reasons for failing to rehire [her] presents no federal constitutional question. Codd v. Velger, 429" }, { "docid": "22185919", "title": "", "text": "“seriously [to] damage his reputation and substantially curtail job opportunities in his chosen profession.” Although the fourteenth amendment offers some measure of protection against governmental action that could “seriously damage [a person’s] standing and 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), the Court has stated specifically that “reputation alone, apart from some more tangible interests such as employment, [is not] either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1161, 47 L.Ed.2d 405 (1976). Rather, reputational injury must coincide with some other “alteration of status.” Id. at 709-10, 96 S.Ct. at 1164. And, where the claimed alteration involves loss of a job, the Court has insisted that the defamation “occur in the course of the termination of employment.” Id. at 710, 96 S.Ct. at 1165; see also Laureano- Agosto v. Garcia-Caraballo, 731 F.2d 101, 104 (1st Cir.1984) (same). This means, of course, that a public employer’s failure to afford a name-clearing hearing for a discharged employee is cognizable under section 1983 as a deprivation of a liberty interest only if (1) the dismissal is grounded on charges which stigmatize the employee, see Codd v. Velger, 429 U.S. 624, 627-28, 97 S.Ct. 882, 883-84, 51 L.Ed.2d 92 (1977) (per curiam); Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1975); Roth, 408 U.S. at 573, 92 S.Ct. 2707, and (2) “the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination.” Codd, 429 U.S. at 628, 97 5.Ct. at 884. Moreover, the stigmatization must occur “in the course of the termination of employment.” Paul, 424 U.S. at 710, 96 S.Ct. at 1165. As we wrote in an earlier case: Unless ... defamatory assertions are made before or during the discharge or one has good reason in advance to believe that the discharge of an ‘at will’ employee will produce such public claims, a pre-termination-hearing requirement as a" }, { "docid": "3506572", "title": "", "text": "example, if a statute, regulation, or policy specifies the grounds on which an employee may be discharged, or restricts the reasons for discharge to “just cause shown.” Id. at 1502. Based upon the foregoing, it is clear that under the applicable personnel rules and New Mexico law, plaintiff was an “at-will” employee who could have been terminated with or without cause, and who was not entitled to any grievance procedures or to notice or hearing at termination. Under these circumstances, plaintiff did not have a property interest that was subject to the due process protections of the Fourteenth Amendment, including any pre-termination or post-termination hearing. C. Liberty Claim Plaintiff’s second constitutional claim is that he has been deprived of a liberty interest without due process of law in that he was terminated without a “name-clearing” hearing. Plaintiff claims that because he was terminated shortly after the reported $29,000 theft at the Metropolitan Court, he was unfairly implicated in the theft, which caused damage to his name and reputation. Even though plaintiff did not have a property interest in his job, a liberty interest may nevertheless exist so that procedural due process would require a hearing to enable the terminated employee the opportunity to clear his name. Board of Regents v. Roth, 408 U.S. 564, 573 n. 12, 92 S.Ct. 2701, 2707 n. 12, 33 L.Ed.2d 548 (1972); Rich v. Secretary of the Army, 735 F.2d 1220, 1226 (10th Cir.1984). Liberty generally encompasses two interests, “(1) the protection of one’s good name, reputation, honor and integrity; and (2) one’s freedom to take advantage of other employment opportunities.” Rich, 735 F.2d at 1226-27; see also Roth, 408 U.S. at 573, 92 S.Ct. at 2707. “[F]or an employee to make a successful liberty deprivation claim [he] must show that [his] dismissal resulted in the publication of information which was false and stigmatizing — information which had the general effect of curtailing [his] future freedom of choice or action.” Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1503 (10th Cir.1984) (citations omitted); see also Dickeson v. Quarberg, 844 F.2d 1435, 1439-40 (10th" }, { "docid": "978180", "title": "", "text": "Sections 3.28 and 3.1 of the Charter, it is clear that the drafters of the Charter knew how to expressly provide’for rights to notice and a hearing when such rights were intended. In view of the express provision of such rights to other employees, it is unlikely that the drafters intended to accord heads of administrative departments such rights by implication through use of the phrase “for the good of the service.” Rather the absence of an express provision of such rights is persuasive evidence that no such rights were intended to exist. [421 F.Supp. at 1125.] We can find no specific Missouri case law to the contrary. While the question is one not entirely free from doubt, under these circumstances we are required to give great weight to the views of the district judge, who is familiar with the local law. See Merchants Mutual Bonding Co. v. Appalachian Ins. Co., 556 F.2d 899 (8th Cir., 1977); Rodeway Inns of America, Inc. v. Frank, 541 F.2d 759, 767 (8th Cir. 1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1580, 51 L.Ed.2d 792 (1977); Luke v. American Family Mut. Ins. Co., 476 F.2d 1015 (8th Cir.) (en banc), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973). Accordingly, we reject Owen’s contention that he possessed a property interest in continued employment as chief of police of the City of Independence. IY. Remedy. We held in Wellner v. Minnesota State Jr. College, 487 F.2d 153 (8th Cir. 1973), that when an untenured employee of a state agency is, upon discharge, stigmatized by the release of defamatory information by his employer and denied the right to clear his name in a public hearing, that employee is entitled to a judgment including lost wages, but not actual reinstatement. In that case we said: Wellner [the state employee] was improperly discharged because he was not accorded an appropriate hearing. His termination was therefore a nullity and he remains on the payroll until a proper hearing is held, at which time he may be retained or not reappointed. It is not within our" } ]

[ { "docid": "22719347", "title": "", "text": "and the district courts. Kim- brough, 128 S.Ct. at 574. As a result, a district court’s decision to vary from the Guidelines “may attract greatest respect when the sentencing judge finds a particular case outside the ‘heartland’ to which the Commission intends individual Guidelines to apply.” Id. at 574-75 (internal quotation marks omitted). Where, instead, the sentencing judge varies from the Guidelines “based solely on the judge’s view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case,” the Supreme Court has suggested that “closer review may be in order.” Id. at 575 (internal quotation marks omitted). Nevertheless, in Kimbrough itself, the Supreme Court found that no “closer review” was warranted where a district court based its sentence on a policy disagreement with the 100-to-l crack cocaine vs. powder cocaine weight ratio, because the crack cocaine Guidelines are not based on empirical data and national experience, and hence “do not exemplify the Commission’s exercise of its characteristic institutional role.” Id. We do not, however, take the Supreme Court’s comments concerning the scope and nature of “closer review” to be the last word on these questions. More will have to be fleshed out as issues present themselves. For instance, we note that some Guidelines enhancements and reductions apply without modulation to a wide range of conduct. The Armed Career Criminal Guidelines, to take one example, sharply increase the recommended sentences for firearms offenses where the defendant has a prior conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a). The Guidelines’ definition of the term “crime of violence,” however, includes a wide spectrum of offenses of varying levels of seriousness, from, on the one hand, murder or rape, to, on the other hand, attempted burglary of a dwelling. Id. § 4B1.2(a)(2). Similarly, many Guidelines such as those covering “offenses involving taxation,” U.S.S.G. § 2T4.1, “antitrust offenses,” see id. § 2R1.1, and larceny, embezzlement, fraud, and similar crimes, see id. § 2B1.1, drastically vary as to the recommended sentence based simply on the amount of money involved. Here again a district court may find that even after" } ]

[ { "docid": "9284001", "title": "", "text": "the district court, which adopted the reasoning of the PSR, because the Guidelines define a qualifying predicate controlled substance offense as one \"under federal or state law,\" all state drug convictions necessarily qualify. Appellant's App. 238-39. And for that reason, in part, the court found that Townsend's prior New York drug conviction subjected him to a heightened base offense level under § 2K2.1(a)(2). II. DISCUSSION We review the sentence imposed by a district court for reasonableness. United States v. Cavera , 550 F.3d 180, 187-88 (2d Cir. 2008) (en banc). But we review de novo a district court's specific determination that a \"prior offense was a controlled substance offense, as defined by U.S.S.G. § 4B1.2.\" United States v. Savage , 542 F.3d 959, 964 (2d Cir. 2008) (internal quotation marks omitted). Calculating a defendant's sentencing range under the Guidelines includes far more than simply considering the crime of conviction. Indeed, for some crimes, the base offense level under the Guidelines-i.e., the starting point-increases because of certain convictions the defendant previously sustained. See, e.g. , U.S.S.G. § 2K2.1(a)(2). But such enhancements are limited by considerations of fairness and due process. See Rosales-Mireles v. United States , --- U.S. ----, 138 S.Ct. 1897, 1907-08, --- L.Ed.2d ---- (2018). For starters, the Guidelines language must make clear-to the court, to the defendant, and to the government-the basis for a sentencing enhancement. Thus, to determine whether a prior conviction increases the defendant's base offense level, courts begin with the language of the Guidelines. See, e.g. , Savage , 542 F.3d at 963-64 (beginning sentencing enhancement analysis with Guidelines language). If the Guidelines are clear, there is little more to do; if they are ambiguous, however, the courts have crafted an interpretive scheme that honors our federal sentencing system while preserving the fairness owed to the defendant. A. Interpreting Guidelines §§ 2K2.1 and 4B1.2(b) Section 2K2.1 of the Guidelines adopts the definition of a \"controlled substance offense\" in § 4B1.2(b). U.S.S.G. § 2K2.1, Application Note 1. Section 4B1.2(b), in turn, defines a controlled substance offense as An offense under federal or state law , punishable" }, { "docid": "10630184", "title": "", "text": "18 U.S.C. § 922(g)(1). Bell pleaded guilty. Prior to sentencing, a probation officer completed a Presentence Investigation Report (PSR). The PSR calculated a base-offense level of 20 after concluding Bell had a conviction under Missouri law for second-degree robbery that qualified as a “crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A) (providing for a base-offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence”). Bell objected. The district court rejected Bell’s objection, adopted the PSR’s recommendation, and calculated Bell’s advisory Guidelines range at 37-46 months. The district court then sentenced Bell to thirty-seven months of imprisonment. This timely appeal followed. II A Bell argues his prior conviction for second-degree robbery should not have been used to increase his base-offense level because it does not qualify as a crime of violence. “We review de novo a district court’s determination that an offense qualifies as a crime of violence under the Guidelines.” United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015). Unless a statute is divisible, i.e., defines multiple offenses some of which would qualify as crimes of violence and some of which would not, we “focus on the generic elements of the offense and not on the specific facts underlying [the defendant’s] conviction.” United States v. Gordon, 557 F.3d 623, 625 (8th Cir. 2009); see also United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011) (explaining the difference between the categorical approach applicable to indivisible statutes, and the modified categorical approach applicable to divisible statutes). Section 2K2.1 incorporates the definition of “crime of violence” used in § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.l. Under the relevant provision of § 4B1.2(a), the phrase “crime of violence” means “any offense [that] ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” In Missouri, “[a] person commits the crime of robbery in the second degree when he forcibly steals property.” Mo. Rev. Stat. § 569.030.1. The term “forcibly steals” is further defined in a" }, { "docid": "9284015", "title": "", "text": "least of the acts criminalized\" by the state statute. Moncrieffe v.Holder , 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks and alterations omitted). If a defendant might be convicted of violating NYPL section 220.31 for conduct that is not prohibited by the CSA, his state conviction cannot qualify as a predicate offense. See Esquivel-Quintana , 137 S.Ct. at 1572. At the time of Townsend's conviction, the New York state drug schedule, section 3306 of the New York Public Health Law, included HCG as a Schedule III controlled substance. See N.Y. Pub. Health Law § 3306, Schedule III(7)(g) (listing Chorionic gonadotropin). HCG is not a controlled substance under the CSA. Compare N.Y. Pub. Health Law § 3306, with 21 U.S.C. § 802. Therefore, the state statute under which Townsend was convicted sweeps more broadly than its federal counterpart, and his prior conviction under NYPL section 220.31 is not a predicate offense for purposes of increasing his Guidelines range under § 2K2.1(a). In sum, because Townsend's prior state conviction was for violating an indivisible statute, the categorical approach applies. And because the state statute of conviction criminalizes the sale of a substance not criminalized under federal law, the state statute does not categorically match the federal crime. Consequently, Townsend's prior New York state conviction cannot be a predicate offense under § 2K2.1(a). III. CONCLUSION For the reasons above, we hold that: (1) The term \"controlled substance\" in U.S.S.G. § 4B1.2(b) refers exclusively to those substances in the CSA; and (2) NYPL section 220.31 criminalizes sale of a drug, HCG, that is not included in the CSA, and NYPL section 220.31 therefore cannot be a predicate offense for an enhanced sentence under U.S.S.G. § 2K2.1(a). Townsend's prior conviction under NYPL section 220.31 therefore does not qualify as a predicate \"controlled substance offense.\" We therefore VACATE the District Court's judgment and REMAND for resentencing. Townsend initially objected to using both prior convictions in determining his base offense level. At the time of sentencing, however, Townsend withdrew his objection to the New Jersey aggravated assault conviction but maintained that" }, { "docid": "5622466", "title": "", "text": "Mr. Barrow’s formulation, his base offense level is 14. The U.S. Probation Office responds that the court can use the more recent conviction because the term “controlled substance offense,” as defined by the Guidelines, refers to “an offense under federal or state law.” U.S.S.G. § 2K2.1, n. 1 (incorporating by reference U.S.S.G. § 4B1.2(b)). A. Effect of the Older Conviction on Sentencing Guidelines Range A prior sentence of 13 months of longer must have been imposed upon defendant, or he must have been incarcerated for that offense, within “fifteen years of the defendant’s commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(l). Sentences that do not receive criminal history points do not increase a defendant’s base offense level under § 2K2.1(a). See U.S.S.G. § 2K2.1, cmt., n. 10. In connection with Mr. Barrow’s first relevant conviction, he received a sentence of 2.5 to 5 years in prison, and was released from custody on April 6, 1999. PSR at ¶ 35. The earliest criminal conduct the indictment charges Mr. Barrow with begins in September 2014, more than fifteen years after he was released from incarceration in relation to the 1995 conviction. See Indictment, Feb. 29, 2016, ECF No. 7. Therefore, this conviction cannot increase Mr. Barrow’s base offense level. See U.S.S.G. § 2K2.1(a). B. Effect of More Recent Conviction on Sentencing Guidelines Range a) Determining if a Prior Conviction is Relevant under the Sentencing Guidelines The base offense level used to calculate a sentencing range under the Sentencing Guidelines for a firearms crime can vary depending on the defendant’s prior convictions. A base offense level of 24 must be applied “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense” (U.S.S.G. § 2K2.1(a)(2)), and a base offense level of 20 must be applied if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). “ ‘Controlled substance offense’ has the meaning given that term" }, { "docid": "1805258", "title": "", "text": "of 120 months, see, 18 U.S.C. § 924(a)(2). Nevertheless, the district court granted Maldonado a downward variance because of its belief that the four-level enhancement for possessing a firearm in connection with another felony offense was “greater than necessary to accomplish' all applicable sentencing purposes” where the “only other felony offense involves carrying weapons under Iowa law.” 'On that basis, the court decided to “vary downward as if the enhancement was only one level instead of four levels.” As a result, the court recalculated Maldonado’s total offense level as 22 and his advisory, guidelines range as 84 to 105 months. The court then sentenced Maldonado to 84 months’ imprisonment. Maldonado now appeals, arguing that the district court committed procedural error by overruling each of his two objections and thereby miscalculating his advisory sentencing guidelines range. II. “When reviewing a defendant’s sentence, we must ensure that the district court committed no significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range.” United States v. Hagen, 641 F.3d 268, 270 (8th Cir. 2011) (quotation omitted). In reviewing for procedural error, “[w]e review the district court’s construction and application of the sentencing guidelines de novo and its factual findings for clear error.” Id. Maldonado argues that the district court committed procedural error in two ways. First, he' argues that the district court erroneously concluded that his Iowa and Nebraska convictions each qualify as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). Second, he argues that the court erroneously applied a four-level enhancement for possession of a firearm “in connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B). We address each argument in turn. A. U.S.S.G. § 2K2.1(a)(2)- provides for a base offense level of 24 “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime- of violence or a controlled substance offense.” U.S.S.G. § 4B1.2(b) defines a “controlled substance offense” as: an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a" }, { "docid": "5622465", "title": "", "text": "during his boy’s formative years to ensure that he was not enticed by the “streets” the same way Mr. Barrow was. See Hr’g Tr. at 16:12-23. II. Offense Level, Category, and Sentencing Guidelines Range Defendant and prosecution have different views on the proper guidelines calculation. The United States Probation Office, relying on “two felony convictions of either a crime of violence or a controlled substance,” believe the base offense level is 24. PSR at ¶ 19; U.S.S.G. § 2K2.1(a)(2). The relevant convictions are: (1) a conviction of violating a New York Class D felony, fifth-degree criminal sale of a controlled substance following a 1994 arrest (PSR at ¶ 35), and (2) a conviction for the same crime following a 2002 arrest. Id. at ¶ 40. Based on those convictions, the government argues that Mr. Barrow’s base offense level is 24. Defense counsel contend that those two convictions cannot serve to increase his offense level. The first conviction is too old, and the second conviction is not a “controlled substance offense” under the Guidelines definition. Under Mr. Barrow’s formulation, his base offense level is 14. The U.S. Probation Office responds that the court can use the more recent conviction because the term “controlled substance offense,” as defined by the Guidelines, refers to “an offense under federal or state law.” U.S.S.G. § 2K2.1, n. 1 (incorporating by reference U.S.S.G. § 4B1.2(b)). A. Effect of the Older Conviction on Sentencing Guidelines Range A prior sentence of 13 months of longer must have been imposed upon defendant, or he must have been incarcerated for that offense, within “fifteen years of the defendant’s commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(l). Sentences that do not receive criminal history points do not increase a defendant’s base offense level under § 2K2.1(a). See U.S.S.G. § 2K2.1, cmt., n. 10. In connection with Mr. Barrow’s first relevant conviction, he received a sentence of 2.5 to 5 years in prison, and was released from custody on April 6, 1999. PSR at ¶ 35. The earliest criminal conduct the indictment charges Mr. Barrow with begins in September 2014, more than" }, { "docid": "9283998", "title": "", "text": "Lawrence J. Vilardo, District Judge: For purposes of United States Sentencing Guidelines (\"U.S.S.G.\" or \"Guidelines\") § 4B1.2(b), \"[t]he term 'controlled substance offense' means an offense under federal or state law ... that prohibits ... distribution ... of a controlled substance .\" (emphasis added). This case presents the question of how to define \"controlled substance\" in § 4B1.2(b) : Does that term include only substances controlled by federal law under the Controlled Substances Act (\"CSA\")? Or does it also include substances regulated by state law but not by federal law? Because we find that \"controlled substance\" refers exclusively to substances controlled by the CSA, we VACATE the judgment of the United States District Court for the Eastern District of New York (Dora L. Irizarry, Chief Judge ) and REMAND for resentencing. I. BACKGROUND On November 21, 2015, New York Police Department officers saw the Defendant-Appellant, Tyrek Townsend (\"Townsend\"), engage in what they believed to be suspicious, drug-related activity. The officers arrested Townsend and, in the search incident to his arrest, recovered a loaded 9-millimeter semiautomatic weapon. A later search at the police precinct yielded six partial tablets of alprazolam, also known as Xanax, a federally controlled substance. Townsend was indicted by a federal grand jury on three counts: (1) possessing alprazolam with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(2) ; (2) possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) ; and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 12, 2016, Townsend pleaded guilty to counts one and three. The crime of being a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1), has a Guidelines base offense level of 20 if the defendant committed the offense after sustaining one felony conviction for either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(4)(A) (2016). The base offense level increases from 20 to 24 if the defendant has two such prior convictions. U.S.S.G. § 2K2.1(a)(2). The presentence investigation report (\"PSR\") prepared" }, { "docid": "9283999", "title": "", "text": "A later search at the police precinct yielded six partial tablets of alprazolam, also known as Xanax, a federally controlled substance. Townsend was indicted by a federal grand jury on three counts: (1) possessing alprazolam with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(2) ; (2) possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) ; and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 12, 2016, Townsend pleaded guilty to counts one and three. The crime of being a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1), has a Guidelines base offense level of 20 if the defendant committed the offense after sustaining one felony conviction for either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(4)(A) (2016). The base offense level increases from 20 to 24 if the defendant has two such prior convictions. U.S.S.G. § 2K2.1(a)(2). The presentence investigation report (\"PSR\") prepared before sentencing determined that U.S.S.G. § 2K2.1(a)(2) applied to Townsend and that the appropriate base offense level was 24. It based that conclusion on two of Townsend's prior convictions: one under New York Penal Law (\"NYPL\") section 220.31 for fifth-degree criminal sale of a controlled substance and another under New Jersey law for third-degree aggravated assault with a deadly weapon. Townsend objected to the higher base offense level. He argued that his prior controlled substance offense under New York law was substantively broader than its federal counterpart and therefore could not be used to increase the offense level and his subsequent calculated Guidelines range. More specifically, he noted that NYPL section 220.31 prohibits the sale of Human Chorionic Gonadotropin (\"HCG\"), a substance controlled under New York law but not controlled under the CSA. Because the New York statute criminalized the distribution of a substance that was not proscribed by federal law, Townsend argued, a conviction under that statute would not increase his federal Guidelines range. The government and the district court disagreed, however. According to" }, { "docid": "9284016", "title": "", "text": "violating an indivisible statute, the categorical approach applies. And because the state statute of conviction criminalizes the sale of a substance not criminalized under federal law, the state statute does not categorically match the federal crime. Consequently, Townsend's prior New York state conviction cannot be a predicate offense under § 2K2.1(a). III. CONCLUSION For the reasons above, we hold that: (1) The term \"controlled substance\" in U.S.S.G. § 4B1.2(b) refers exclusively to those substances in the CSA; and (2) NYPL section 220.31 criminalizes sale of a drug, HCG, that is not included in the CSA, and NYPL section 220.31 therefore cannot be a predicate offense for an enhanced sentence under U.S.S.G. § 2K2.1(a). Townsend's prior conviction under NYPL section 220.31 therefore does not qualify as a predicate \"controlled substance offense.\" We therefore VACATE the District Court's judgment and REMAND for resentencing. Townsend initially objected to using both prior convictions in determining his base offense level. At the time of sentencing, however, Townsend withdrew his objection to the New Jersey aggravated assault conviction but maintained that his New York controlled substance conviction could not support the higher offense level. So Townsend argued that his base offense level was 20 because the New York controlled substance conviction did not qualify as a \"controlled substance offense\" under Guidelines § 2K2.1(a)(2). In the proceedings below, the government's primary argument for qualifying the conviction as a predicate offense rested on the divisibility of NYPL section 220.31. Because that statute is \"divisible,\" the government argued, and based on the government's assertion that Townsend's prior conviction was for possessing heroin and not HCG, his prior conviction qualified. This Court's subsequent decision in Harbin v. Sessions , 860 F.3d 58, 61 (2d Cir. 2017), however, found NYPL section 220.31 to be indivisible. See infra section II.B.1. So the government has changed direction on appeal. In fact, even though the government now asserts that Townsend's interpretation of controlled substance defies \"the plain text of [§ 4B1.2(b) ]\" Br. Appellee 14, the government conceded in the proceedings below the very point it now contests. See Appellant's App. 187 (\"[I]f the" }, { "docid": "23244921", "title": "", "text": "for resentencing. BACKGROUND On December 12, 2005, Savage, pursuant to a plea agreement, pleaded guilty to possessing ammunition subsequent to a felony conviction, in violation of 18 U.S.C. § 922(g)(1). Guidelines § 2K2.1(a)(2) calls for a base offense level of twenty-four “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). Guidelines § 2K2.1(a)(4)(A) calls for a base offense level of twenty if the defendant had only one such predicate conviction. Id. § 2K2.1(a)(4)(A). Prior to sentencing, the Probation Office calculated a base offense level of twenty-four, based on its conclusion that Savage had sustained two predicate convictions under Guidelines § 2K2.1(a)(2): (i) a 1999 felony conviction for assault in the second degree, which, beyond dispute, qualified as a felony conviction of a crime of violence; (ii) a 2002 conviction for a violation of Connecticut General Statute § 21a-277(b) (“Connecticut Statute”), which, here disputed, allegedly qualified as a felony conviction of a controlled substance offense. After applying a three-point reduction for acceptance of responsibility, the PSR calculated an adjusted offense level of twenty-one, which, combined with Savage’s criminal history category of VI, resulted in a Guidelines’ recommended range of seventy-seven to ninety-six months’ imprisonment. The district court, over objections from defense counsel, adopted the sentencing range calculated by the PSR. On August 24, 2006, the court sentenced Savage, at the lowest end of the Guidelines’ range, to seventy-seven months’ imprisonment, three years’ supervised release, and $100 special assessment. The only dispute in the calculation of the sentence is whether Savage’s 2002 Connecticut conviction was a conviction for a controlled substance offense, as defined in Guidelines § 4Bl.l(b). If it was not, then the district court should have applied a base offense level of twenty, rather than twenty-four, under Guidelines § 2K2.1(a)(4)(A). Applying the same three-point reduction for acceptance of responsibility, this would have resulted in a Guidelines’ range of fifty-one to sixty-three months’ imprisonment. U.S.S.G. Table, Ch.5, Pt.A. The Connecticut Statute provides, in pertinent part: Any person who" }, { "docid": "1805259", "title": "", "text": "omitted). In reviewing for procedural error, “[w]e review the district court’s construction and application of the sentencing guidelines de novo and its factual findings for clear error.” Id. Maldonado argues that the district court committed procedural error in two ways. First, he' argues that the district court erroneously concluded that his Iowa and Nebraska convictions each qualify as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). Second, he argues that the court erroneously applied a four-level enhancement for possession of a firearm “in connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B). We address each argument in turn. A. U.S.S.G. § 2K2.1(a)(2)- provides for a base offense level of 24 “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime- of violence or a controlled substance offense.” U.S.S.G. § 4B1.2(b) defines a “controlled substance offense” as: an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. Application Note 1 to § 4B1.2 explains that “controlled substance offenses also include ‘aiding and abetting, conspiring, and attempting to commit such offenses.’ ” “To determine whether a prior conviction qualifies as a controlled substance offense,' the court must apply the ‘categorical approach’.... ” United States v. Robinson, 639 F.3d 489, 495 (8th Cir. 2011) (citations omitted). “Under this \"approach, we look not to the facts of the particular prior case, but instead to whether the state'Statute defining \"the crime of conviction categorically fits within the generic federal definition of a corresponding [controlled’ substance offense].” United States v. Roblero-Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013) (quotation omitted). To determine whether the state statute categorically fits within the generic federal definition, “we must presume that the conviction rested upon nothing more than the least of the acts proscribed by the state law and then determine 'whether even those acts" }, { "docid": "5199051", "title": "", "text": "the district court considered the 18 U.S.C. § 3553(a) sentencing factors. The district court acknowledged Evans’s difficult upbringing but concluded that this factor was outweighed by his lengthy and serious criminal history. The district court ultimately imposed a sentence of 92 months’ imprisonment, which was at the bottom end of the Guidelines range. II. On appeal, Evans maintains that the district court improperly enhanced his advisory base offense level by four levels, from 20 to 24, under Sentencing Guideline § 2K2.1(a)(2) based on his 2000 felony conviction of knowingly assaulting a police officer and his 2004 felony conviction of trafficking in cocaine. Section 2K2.1(a)(2) provides that if a defendant who is convicted of being a felon in possession of a firearm has at least two prior felony convictions of either a crime of violence or a controlled substance offense, the district court is to apply a base offense level of 24. U.S.S.G. § 2K2.1(a)(2). If a defendant has only one such prior conviction, the district court is to apply a base offense level of 20. Id. § 2K2.1(a)(4)(A). Because Evans has admitted that his prior 2006 felony conviction for drug trafficking in Ohio qualifies as a controlled substance offense under the Sentencing Guidelines, we need only find that one of the challenged prior convictions qualifies under §§ 2K2.1 and 4B1.2 to affirm the district court’s decision to set Evans’s base offense level at 24. A district court’s determination that a prior offense qualifies either as a crime of violence or as a controlled substance offense is a legal determination, which we review de novo. United States v. Catalan, 499 F.3d 604, 606 (6th Cir.2007); United States v. McMurray, 653 F.3d 367, 371 (6th Cir.2011). When conducting this de novo review, this court applies a “categorical” approach, “looking to the statutory definition of the offense and not the particular facts underlying the conviction.” McMurray, 653 F.3d at 372 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). A. Evans claims that his prior conviction for assault of a police officer, in violation of Ohio" }, { "docid": "5622467", "title": "", "text": "fifteen years after he was released from incarceration in relation to the 1995 conviction. See Indictment, Feb. 29, 2016, ECF No. 7. Therefore, this conviction cannot increase Mr. Barrow’s base offense level. See U.S.S.G. § 2K2.1(a). B. Effect of More Recent Conviction on Sentencing Guidelines Range a) Determining if a Prior Conviction is Relevant under the Sentencing Guidelines The base offense level used to calculate a sentencing range under the Sentencing Guidelines for a firearms crime can vary depending on the defendant’s prior convictions. A base offense level of 24 must be applied “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense” (U.S.S.G. § 2K2.1(a)(2)), and a base offense level of 20 must be applied if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). “ ‘Controlled substance offense’ has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1, cmt., n. 1. Section 4B1.2 defines “controlled substance offense” as “an offense under federal or state law, punisha ble by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). Discerning whether a conviction under state law is a conviction for a “predicate offense” for purposes of sentencing under the Guidelines cannot be accomplished by simply looking at the label attached to the state law of conviction. See, e.g., Taylor v. United States, 495 U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (courts must look beyond the “technical definitions and labels under state law” when determining if a defendant has been convicted of a predicate offense that enhances his or her sentence). Instead, courts use a “categorical approach” and “compare" }, { "docid": "9284000", "title": "", "text": "before sentencing determined that U.S.S.G. § 2K2.1(a)(2) applied to Townsend and that the appropriate base offense level was 24. It based that conclusion on two of Townsend's prior convictions: one under New York Penal Law (\"NYPL\") section 220.31 for fifth-degree criminal sale of a controlled substance and another under New Jersey law for third-degree aggravated assault with a deadly weapon. Townsend objected to the higher base offense level. He argued that his prior controlled substance offense under New York law was substantively broader than its federal counterpart and therefore could not be used to increase the offense level and his subsequent calculated Guidelines range. More specifically, he noted that NYPL section 220.31 prohibits the sale of Human Chorionic Gonadotropin (\"HCG\"), a substance controlled under New York law but not controlled under the CSA. Because the New York statute criminalized the distribution of a substance that was not proscribed by federal law, Townsend argued, a conviction under that statute would not increase his federal Guidelines range. The government and the district court disagreed, however. According to the district court, which adopted the reasoning of the PSR, because the Guidelines define a qualifying predicate controlled substance offense as one \"under federal or state law,\" all state drug convictions necessarily qualify. Appellant's App. 238-39. And for that reason, in part, the court found that Townsend's prior New York drug conviction subjected him to a heightened base offense level under § 2K2.1(a)(2). II. DISCUSSION We review the sentence imposed by a district court for reasonableness. United States v. Cavera , 550 F.3d 180, 187-88 (2d Cir. 2008) (en banc). But we review de novo a district court's specific determination that a \"prior offense was a controlled substance offense, as defined by U.S.S.G. § 4B1.2.\" United States v. Savage , 542 F.3d 959, 964 (2d Cir. 2008) (internal quotation marks omitted). Calculating a defendant's sentencing range under the Guidelines includes far more than simply considering the crime of conviction. Indeed, for some crimes, the base offense level under the Guidelines-i.e., the starting point-increases because of certain convictions the defendant previously sustained. See, e.g. , U.S.S.G." }, { "docid": "23244920", "title": "", "text": "POOLER, Circuit Judge: Lavon Savage (“Savage”) appeals from a judgment of the United States District Court for the District of Connecticut (Burns, /.), entered on August 24, 2006, convicting him, pursuant to a guilty plea, of possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and sentencing him principally to seventy-seven months’ imprisonment and three years’ supervised release. Savage appeals only the sentence. The district court’s calculation of the applicable Guidelines’ sentencing range was based, in relevant part, on the court’s determination that one of Savage’s previous felony convictions, entered following an Alford plea, was a conviction for a “controlled substance offense,” as that term is defined in U.S. Sentencing Guidelines Manual (“Guidelines”) § 4B1.2(b). Because nothing in the statute of conviction, the charging document, the plea colloquy or other comparable judicial record established with certainty that Savage necessarily pleaded guilty to the elements of a controlled substance offense, the district court committed procedural error in its calculation of the Guidelines sentencing range. Accordingly, we vacate the sentence and remand for resentencing. BACKGROUND On December 12, 2005, Savage, pursuant to a plea agreement, pleaded guilty to possessing ammunition subsequent to a felony conviction, in violation of 18 U.S.C. § 922(g)(1). Guidelines § 2K2.1(a)(2) calls for a base offense level of twenty-four “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). Guidelines § 2K2.1(a)(4)(A) calls for a base offense level of twenty if the defendant had only one such predicate conviction. Id. § 2K2.1(a)(4)(A). Prior to sentencing, the Probation Office calculated a base offense level of twenty-four, based on its conclusion that Savage had sustained two predicate convictions under Guidelines § 2K2.1(a)(2): (i) a 1999 felony conviction for assault in the second degree, which, beyond dispute, qualified as a felony conviction of a crime of violence; (ii) a 2002 conviction for a violation of Connecticut General Statute § 21a-277(b) (“Connecticut Statute”), which, here disputed, allegedly qualified as a felony conviction of a controlled" }, { "docid": "9284002", "title": "", "text": "§ 2K2.1(a)(2). But such enhancements are limited by considerations of fairness and due process. See Rosales-Mireles v. United States , --- U.S. ----, 138 S.Ct. 1897, 1907-08, --- L.Ed.2d ---- (2018). For starters, the Guidelines language must make clear-to the court, to the defendant, and to the government-the basis for a sentencing enhancement. Thus, to determine whether a prior conviction increases the defendant's base offense level, courts begin with the language of the Guidelines. See, e.g. , Savage , 542 F.3d at 963-64 (beginning sentencing enhancement analysis with Guidelines language). If the Guidelines are clear, there is little more to do; if they are ambiguous, however, the courts have crafted an interpretive scheme that honors our federal sentencing system while preserving the fairness owed to the defendant. A. Interpreting Guidelines §§ 2K2.1 and 4B1.2(b) Section 2K2.1 of the Guidelines adopts the definition of a \"controlled substance offense\" in § 4B1.2(b). U.S.S.G. § 2K2.1, Application Note 1. Section 4B1.2(b), in turn, defines a controlled substance offense as An offense under federal or state law , punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 4B1.2(b) (emphasis added). The district court here found this language to be clear and unambiguous. Because state controlled substance offenses can be valid predicate offenses, the court reasoned, all state controlled substance offenses are incorporated into the sentencing enhancement provision. In the words of the court, \"[t]he operative term is 'or state law.' So that particular guideline actually provides that a specific violation of state law ... would make it a controlled substance offense under the guideline.\" Appellant's App. 238-39. The district court here was not the only one in our Circuit to reach that conclusion. In United States v. Laboy , 16-CR-669 (AJN), 2017 WL 6547903 (S.D.N.Y. Dec. 12, 2017), the district court found that \"the phrase 'controlled substances' has no inherent meaning beyond a governing entity's decision" }, { "docid": "5199050", "title": "", "text": "as defined under U.S.S.G. § 4B1.2(a) because the conduct proscribed by the statute need not be “purposeful.” Evans conceded, however, that his prior 2006 felony conviction for drug trafficking in Ohio qualified as a controlled substance offense under the Sentencing Guidelines. As a result, Evans argued that with just one qualifying prior felony conviction, his base offense level under the Guidelines should have been 20 instead of 24. At sentencing, the district court rejected Evans’s arguments and found that his 2004 Ohio conviction of trafficking in cocaine was a controlled substance offense and that his 2000 Ohio conviction for knowingly assaulting a police officer was a crime of violence as defined under § 4B1.2 of the Sentencing Guidelines. After Evans presented his arguments in favor of mitigation and a below-Guidelines sentence — including a difficult, unstable childhood; the murder of his father; a history of substance abuse; the completion of a GED and drug treatment programs; and his claim that he only began carrying a gun for protection after the murder of his brother — the district court considered the 18 U.S.C. § 3553(a) sentencing factors. The district court acknowledged Evans’s difficult upbringing but concluded that this factor was outweighed by his lengthy and serious criminal history. The district court ultimately imposed a sentence of 92 months’ imprisonment, which was at the bottom end of the Guidelines range. II. On appeal, Evans maintains that the district court improperly enhanced his advisory base offense level by four levels, from 20 to 24, under Sentencing Guideline § 2K2.1(a)(2) based on his 2000 felony conviction of knowingly assaulting a police officer and his 2004 felony conviction of trafficking in cocaine. Section 2K2.1(a)(2) provides that if a defendant who is convicted of being a felon in possession of a firearm has at least two prior felony convictions of either a crime of violence or a controlled substance offense, the district court is to apply a base offense level of 24. U.S.S.G. § 2K2.1(a)(2). If a defendant has only one such prior conviction, the district court is to apply a base offense level of 20." }, { "docid": "9284017", "title": "", "text": "his New York controlled substance conviction could not support the higher offense level. So Townsend argued that his base offense level was 20 because the New York controlled substance conviction did not qualify as a \"controlled substance offense\" under Guidelines § 2K2.1(a)(2). In the proceedings below, the government's primary argument for qualifying the conviction as a predicate offense rested on the divisibility of NYPL section 220.31. Because that statute is \"divisible,\" the government argued, and based on the government's assertion that Townsend's prior conviction was for possessing heroin and not HCG, his prior conviction qualified. This Court's subsequent decision in Harbin v. Sessions , 860 F.3d 58, 61 (2d Cir. 2017), however, found NYPL section 220.31 to be indivisible. See infra section II.B.1. So the government has changed direction on appeal. In fact, even though the government now asserts that Townsend's interpretation of controlled substance defies \"the plain text of [§ 4B1.2(b) ]\" Br. Appellee 14, the government conceded in the proceedings below the very point it now contests. See Appellant's App. 187 (\"[I]f the defendant was convicted of selling 'human chorionic gonadotropin,' a substance that was a 'controlled substance' under New York law but not federal law then the Drug Conviction would not count as a predicate felony.\") (citation omitted). We note that our conclusion that § 2K2.1(a) is meant to apply only to substances controlled under federal law is determined by our adherence to the Jerome presumption in interpreting the provision's ambiguity. Our analysis under the Jerome presumption differs from the approach taken by the Court in Taylor v. United States and Esquivel-Quintana v. Sessions . In both those cases, the Court defined the \"generic\" meaning of an offense as contained in a federal enhancement statute to determine whether the defendant's state law offense qualified for the federal enhancement at issue. Because the Jerome presumption requires that we consider only controlled substances as defined by federal law, regardless of what the \"generic definition\" of a controlled substance might be, we need not decipher the generic definition of a controlled substance to resolve this appeal. These other circuit opinions" }, { "docid": "23244930", "title": "", "text": "entirely. The government conceded that the charging document did not narrow the charge because the government had not shown, nor would attempt to show on remand, that the notation was a case-specific descriptor of the offense rather than something generated by a computer upon entry of the statutory section alone. Thus, the only remaining issues on appeal are (a) whether the Connecticut Statute criminalizes conduct that falls outside the federal definition of a controlled substance offense; and, if so, (b) whether the plea colloquy established that Savage was convicted of a narrowed charge that falls exclusively within the Guidelines’ definition of a controlled substance offense. DISCUSSION “[A] district court should begin all sentencing proceedings by correctly calcu lating the applicable Guidelines range.” Gall v. United States, — U.S. —, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). In reviewing a sentence on appeal, we must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” Id. at 597. We review de novo the district court’s determination of whether a prior offense was a “controlled substance offense,” as defined by U.S.S.G. § 4B1.2, and we review de novo “the scope of a district court’s authority to make factual findings.” United States v. Rosa, 507 F.3d 142, 151 & n. 8 (2d Cir.2007); see also United States v. Lynch, 518 F.3d 164, 168 (2d Cir.2008). The government bears the burden of showing that a prior conviction counts as a predicate offense for the purpose of a sentencing enhancement. Green, 480 F.3d at 635. In determining whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.2, “we take a [modified] categorical approach; that is, we generally look only to the statutory definition of the prior offense of conviction rather than to the underlying facts of that offense.” United States v. Brown, 514 F.3d 256, 265 (2d Cir.2008); see also Green, 480 F.3d at 631-32 (applying modified categorical approach to determination of whether prior conviction qualified as a controlled substance offense under U.S.S.G. § 2K2.1). Under the modified categorical" }, { "docid": "22243727", "title": "", "text": "characteristics did not warrant a sentence outside the Guidelines range. See id. at 2469. Thus, the district judge was entitled to rely on the Commission’s consideration of the § 3553(a) factors in formulating the sentence. Accordingly, the district judge’s brief statement was sufficient under the circumstances to show he considered the § 3553(a) factors to determine the appropriate sentence. To the extent appellant argues his sentence was substantively unreason able, we do not agree. Because appellant’s sentence imposed fell within the guidelines range, the sentence is entitled to a presumption of reasonableness. United States v. Ruhbayan, — F.3d-, 2007 WL 2215955, at *10 (4th Cir. Aug.3, 2007). Under the reasonableness inquiry, we must consider “whether the sentence was selected pursuant to a reasoned process in accordance with law, in which the court did not give excessive weight to any relevant factor, and which effected a fair and just result in light of the relevant facts and law.” Green, 436 F.3d at 457. There is no reason to believe that the district court gave excessive weight to any of the relevant factors. Moreover, having reviewed the record, we cannot conclude that appellant’s circumstances, such as his health issues or educational background, make his sentence unfair or unjust. C. Finally, appellant argues the district court improperly calculated the base offense level. The district court assigned a base offense level of twenty-four pursuant to U.S.S.G. § 2K2.1(a)(2), which applies if “the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” Appellant asserts he had only one qualifying prior felony controlled substance offense conviction and that the district court thus erred by applying § 2K2.1(a)(2). To qualify as a felony controlled substance offense conviction under § 2K2.1(a)(2), the offense must satisfy two requirements: (1) the offense must have been a “controlled substance offense” as defined at § 4B1.2(b); and (2) the offense must have received criminal history points pursuant to § 4A1.2(a), (b), or (c). See U.S.S.G. § 2K2.1, app. notes 1 & 12. A “controlled" } ]

[ { "docid": "22785092", "title": "", "text": "against him, and personally received from Lay the $100,000 which he then turned over to the corporation. On these findings the Commissioner ruled that Griffiths, having beeñ allowed a deduction for loss attributable to the stock purchased from Lay and having now recouped that loss through settlement of his claim against Lay, was subject to tax for the amount of the settlement in 1933. We think the Commissioner was' right, and that the Circuit Court of Appeals properly reversed the Board of Tax Appeals. The facts leave little scope for legal explication. Griffiths had a claim for fraud against Lay which, when satisfied, wiped out the loss for which he had received an earlier deduction. Had satisfaction of the claim come to him without any conduit, it would have indisputably been his income. The claim having been recognized by Lay and cast into a form realizable by Griffiths, a lawyer’s ingenuity devised a technically elegant arrangement whereby an intricate outward appearance was given to the simple sale from Griffiths to Lay and the passage of money from Lay to Griffiths. That was the crux of the business to Griffiths, and that is the crux of the business to us. We cannot too often reiterate that “taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed — the actual benefit for which the tax is-paid.” Corliss v. Bowers, 281 U. S. 376, 378. And it makes no difference that such “command” may be exercised through specific retention of legal title or the creation of a new equitable but controlled interest, or the maintenance of effective benefit through the interposition of a subservient agency. Cf. Gregory v. Helvering, 293 U. S. 465. “A given result at the end of a straight path,” this Court, said in Minnesota Tea Co. v. Helvering, 302 U. S. 609, 613, “is not made a different result because reached by following a devious path.” Legislative words are not inert, and derive vitality from the obvious purposes at which they are aimed, particularly in the provisions of" } ]

[ { "docid": "6945769", "title": "", "text": "399 F. 2d 194, 207-209 (Ct. Cl. 1968), where the Court of Claims held that the doctrine did have such vitality, and 402 F. 2d 1000, 1001 fn. 2 (Ct. Cl. 1968), where on rehearing the Court of Claims stated that the Government “no longer argues that the Klm'bell-Diamond approach is not viable.” See also Pacific Transport Co. v. Commissioner, 483 F. 2d 209 (C.A. 9, 1973), vacating and remanding a Memorandum Opinion of this Court. We do not read Madison Square Garden Corp., 58 T.C. 619, 627 (1972), on appeal (C.A. 2, Aug. 6, 1973), as requiring a different conclusion. That case turned on the State of the pleadings and the evidence. See Mary B. Kass, 60 T.C. 218, 223-225 (1973). On the present record, we are unable to determine whether the payment made by New Nassau allegedly for 20 shares of preferred stock of Old Nassau should be Included In petitioner’s total basis. See fns. 3 and 5 supra. Scott, J., dissenting: I respectfully disagree with the holding of the majority in this case as to the basis of the assets acquired by New Nassau. As I understand the majority holding, the basis of these assets is not being determined under either the provisions of section 384(b) (2) or the doctrine of Kimbell-Diamond Milling Co., 14 T.C. 74 (1950), affirmed per curiam 187 F. 2d 718 (C.A. 5, 1951). Therefore, under the provisions of section 1012 of the Code, the basis of the assets “shall be the cost” of such assets, and under section 1.1012-1 (a), Income Tax Regs., “the cost is the amount paid for such property in cash or other property.” Here, the 'assets of Old Nassau were paid for by New Nassau with stock and assumption of liability. We have long recognized that where assets are exchanged for stock in a taxable transaction, the cost of the assets is the fair market value of the stock issued therefor, and if the fair market value of the stock cannot be otherwise ascertained and all or substantially all of the corporate stock is issued for the assets," }, { "docid": "20107661", "title": "", "text": "purpose for the prepayment of feed. Thus he asks us to apply the step-transaction doctrine to disregard the creation of Queen and all steps taken by Queen, including the prepayment of feed and the installment sale, and to recognize D & S as the entity actually conducting the feeding operation, so as to disallow the entire subchapter S loss in 1971 and collapse the transaction into 1972 and 1973 when the actual feeding took place. Although we agree that application of the step-transaction doctrine is proper in this case, our application does not produce the result outlined by respondent. Where an interrelated series of steps are taken pursuant to a plan to achieve an intended result, the tax consequences are to be determined not by viewing each step in isolation, but by considering all of them as an integrated whole. See D’Angelo Associates, Inc. v. Commissioner, 70 T.C. 121, 129 (1978); Redwing Carriers, Inc. v. Tomlinson, 399 F.2d 652, 658 (5th Cir. 1968); Atlee v. Commissioner, 67 T.C. 395 (1976); King Enterprises, Inc. v. United States, 189 Ct. Cl. 466, 418 F.2d 511, 516 (1969). As the Supreme Court cautioned in Minnesota Tea Co. v. Helvering, 302 U.S. 609, 613 (1938): \"A given result at the end of a straight path is not made a different result because reached by following a devious path.” The twisted path followed by petitioners took them through a series of closely related steps that culminated in the formation of a general partnership in whose name the feeding operation was actually conducted. These events occurred within an interval of less than 2 months. Packard purchased the Queen stock on December 17,1971. Queen entered into the cattle-feeding agreement with Zimmerman and purchased feed on December 23, 1971. Queen conducted no other activities during its existence. On January 12, 1972, petitioners organized D & S. On February 1, 1972, Packard and D & S entered into the agreement for the purported installment sale of the Queen stock, which terminated Queen’s status as a small business corporation. Also on February 1, 1972, D & S adopted a plan" }, { "docid": "1800220", "title": "", "text": "L.Ed. 957 (1939), and Eaton v. Commissioner of Internal Revenue, 81 F.2d 332 (C.A.9, 1935). Appellees utilize the same cases in their briefs and arguments before this court. All parties agree that the liquidation of Old States was governed by the provisions'of § 334(b)(2) of the 1954 Internal Revenue Code, the provisions of which were non-existent at the time of the Eaton and Metropolitan Edison decisions. That the Kimbell-Dia-mond philosophy is no longer controlling is stressed in the recent ninth circuit case of Boise Cascade Corp. v. United States, 288 F.Supp. 770 (D.Ida.1968), aff’d per curiam 429 F.2d 426 (C.A.9, 1970), in which we affirmed for the reasons stated in the opinion of the district court. There, as here, the taxpayer argued that if a corporation acquires the stock of another and liquidates the stock, the acquiring corporation’s intent governed the basis for the assets of the liquidated corporation. In rejecting this contention, the district court said: “. . . Section 334(b)(2) was passed by Congress to eliminate a subjective intent test enunciated in Kimbell-Diamond Milling Co. v. Commissioner [of Internal Revenue] 14 T.C. 74 (1950), affirmed per curiam, 187 F.2d 718 (5th Cir.1951), certio-rari denied, 342 U.S. 827,.72 S.Ct. 50, 96 L.Ed. 626 (1951). . . .” [Page 774] The opinion then goes on to emphasize that intent was the controlling factor of the Kimbell-Diamond decision. Again, we quote: “. . . Section 334(b)(2) eliminated this intent test and much litigation was laid to rest. Taxpayer endeavors to offer another intent test in a § 334(b)(2) acquisition and liquidation problem. Congress eliminated one intent test which gave rise to considerable litigation and this court does not believe another intent case is justified in this case. The intent of the taxpayer at the time of acquiring the stock is not material to a determination of the question presented here.” [Page 774] Needless to say, the tax court could not anticipate the affirmance in Boise Cascade. For that matter, it would seem the tax court was not aware of the district court decision since it is not cited in the tax" }, { "docid": "7346801", "title": "", "text": "substance of a transaction. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 333, 65 S.Ct. 707, 89 L.Ed. 981; Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596. This basic concept of tax law is particularly pertinent to cases involving a series of transactions designed and executed as parts of a unitary plan to achieve an intended result. Such plans will be viewed as a whole regardless of whether the effect of so doing is imposition of or relief from taxation. The series of closely related steps in such a plan are merely the means by which to carry out the plan and will not be separated. * * *\" [214 F.2d 691.] Examined in the light of this pronouncement, the testimony of the officers of the company, some of whom at the time of the trial no longer had any connection with it, when taken in the light of the overwhelming significance, in the transaction, of the timber and its tax base, does not, we think, permit of any other conclusion than that the merger was not an independent transaction but a concluding step in a series of steps necessary to carry out and give effect to the original, continuing, and controlling purpose of the taxpayer in the purchase of the stock. The refusal of the court to grant a new trial was a clear abuse of discretion. The judgment is, therefore, reversed and the cause is remanded with directions to grant a new trial. Reversed and remanded. . Kimbell-Diamond Milling Co. v. C. I. R., 14 T.C. 74, affirmed per curiam, 5 Cir., 187 F.2d 718; certiorari denied 342 U.S. 827, 72 S.Ct. 50, 96 L.Ed. 626. Cf. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981. . Kanawha Gas & Utilities Co. v. Commissioner, 5 Cir., 214 F.2d 685; Commissioner of Internal Revenue v. Ashland Oil & Refining Co., 6 Cir., 99 F.2d 588; Helvering v. Security Savings & Commercial Bank, 4 Cir., 72 F.2d 874; Prairie Oil & Gas Co. v. Motter," }, { "docid": "8781437", "title": "", "text": "the gift tax to political contributions creates a minor flaw in the symmetry of the estate and gift taxes. One is tempted to simply point out that this is the difference between the living and the dead, those who spend and those who bequeath. But the short answer is that in interpreting a difficult law, we choose the highly probable rather than the extremely improbable for our factual predicate. See also United States v. American Trucking Associations, Inc., 310 U.S. 534, 543 (1940). Tax cases abound where these principles have been applied. Corn Products Refining Co. v. Commissioner, 350 U.S. 46 (1955); Kimbell-Diamond Milling Co. v. Commissioner, 14 T.C. 74 (1950), affd. per curiam 187 F.2d 718 (5th Cir. 1951), cert. denied 342 U.S. 827 (1951); Gregory v. Helvering, 293 U.S. 465 (1935); Bongiovanni v. United States, 470 F.2d 921, 924 (2d Cir. 1972); Focht v. Commissioner, 68 T.C. 223 (1977). “That the general standard to be applied is an objective one does not mean that the gift tax should necessarily be applied to transactions between strangers if the donor is clearly hoping to benefit himself by the transfer and not an individual whom he has probably never met and might not particularly like. * * * [P. Faber, “Gift Tax Planning: The New Valuation Tables; Net Gifts; Political Gifts; and Other Problems,” N.Y.U. 31st Inst, on Fed. Tax. 1217,1249 (1973).]” Tannenwald, J., concurring: I agree with the result reached by the majority. However, I would eschew the various arguments related to political support in order to attempt to achieve social or economic objectives of a taxpayer and protection and advancement of the taxpayer’s property interests (see Stern v. United States, 436 F.2d 1327, 1330 (5th Cir. 1971)) or relating to inferences to be drawn from the legislative history of the estate and gift taxes. Rather, I would rest my position on the fact that, absent a familial or other personal relationship between a candidate and his benefactor, campaign activities of political candidates (with which political contributions or direct expenditures benefiting such activities are intertwined) are “an inextricable part of" }, { "docid": "10992652", "title": "", "text": "realized long-term capital gains in the amount of $2,278,468.30 as shown on Exhibit B-l attached, in lieu of $51,242.52 reported on your income tax return. Therefore, taxable income is increased in the amount of $2,227,225.78. OPINION The issue now before us concerns a transaction between two corporations, both controlled by the same family interests. The setting for the issue is, therefore, a familiar one; however, the facts involved are somewhat unusual. It is by now well established that taxpayers may arrange their affairs in whatever manner is best suited to their needs, tax or otherwise. Hanover Bank v. Commissioner, 369 U.S. 672, 688 (1962); Henry C. Beck Builders, I no., 41 T.C. 616 (1964) ; and Chewy v. United States, 264 F. Supp. 969 (C.D. Calif. 1967). As long as the means chosen to accomplish the ends sought comport with commercial reality, Knetsch v. United States, 364 U.S. 361 (1960), clearly reflect income, Philipp Bros. Chemicals, Inc. (Md.), 52 T.C. 240, 251 (1969), are bona fide in nature, Gregory v. Helvering, 293 U.S. 465 (1935), and have not been used solely as a means of escaping taxes, National Carbide Corp. v. Commissioner, 336 U.S. 422 (1949), the law will not ascribe to any such arrangement tax consequences other than those intended by the parties. United States v. Cumberland Pub. Serv. Co., 338 U.S. 451 (1950) ; Granite Trust Company v. United States, 238 F. 2d 670 (C.A. 1, 1956), remanding case to District Court. In the case at bar, petitioner T.M.E. was brought into being for the sole purpose of providing its sister corporation — Riss—with a conduit through which Riss would be able to engage in purchasing practices which would otherwise have been encumbered by certain Interstate Commerce Commission regulations governing the purchasing activities of interstate motor carriers. Accordingly, from its nais-sance in 1938 to the years now before this Court, T.M.E.’s dominant purpose for being — literally its raison d’etre — was to purchase equipment needed by Riss, both rolling and stationary, and to then lease it to Riss for an annual stipend calculated to exceed T.M.E.’s depreciation" }, { "docid": "7259524", "title": "", "text": "of the liquidating corporation which is allocable, under regulations prescribed by the Secretary or his delegate, to the property sold or exchanged, over (ii) the adjusted basis, in the hands of the liquidating corporation, of the property sold or exchanged. Section 334 (b) (2) was a codification of the rule of Kimball-Diamond Milling Co., 14 T.C. 74 (1950), affd. 187 F. 2d 718 (C.A. 5, 1951). Essentially, section 334(b)(2) provides that where a corporation purchases the stock of another corporation and within 2 years after the purchase a plan of liquidation is adopted,, the basis of the assets of the subsidiary received by the parent is the amount paid for the subsidiary’s stock. If a subsidiary sells property after it has adopted a plan of complete liquidation, and section 334(b) (2) applies, section 337 is applicable to the extent that preacquisition appreciation in value is excluded from recognition; however, if the subsidiary sells the property for more than the parent paid for the subsidiary’s stock, that part of the gain is recognized and is taxable. But for the limited application of section 337, the formal manner in which transactions were carried out would again be given undue weight. To illustrate this, if the subsidiary sold the property, the amount of recognizable gain would be the difference between what the subsidiary got and its adjusted cost basis. However, if the property was distributed to the parent, the parent, under section 334 (b)(2), would get a stepped-up basis and the amount of recognizable gain would accordingly be reduced. Thus, with the limited application of section 337 the amount of gain is the same whether the subsidiary sells the property or the parent does. Thus this limited application of section 337 carries out the purpose of sections 337 and 334 (b)(2). Sec. 112(b)(6). Neptune Meter Co. v. Price, 98 P. 2d 76 (C.A. 2, 1938), on remand (E.D. N.Y. 1939), affirmed per curiam 110 P. 2d 852 (C.A. 2, 1940); National Grocery Co. v. Commissioner, 111 P. 2d 328 (C.A. 9, 1940), affirming a Memorandum Opinion of this Court; Prelmont Realty Corporation, 29" }, { "docid": "20023843", "title": "", "text": "having been received in an exchange within tbe meaning of section 1223(1). To accept tbat position requires writing into section 1223(1) an exception tbat is not there. Section 334(b)(2) was first enacted in 1954 and was intended to be a codification of tbe judicial principles set forth in Kimbell-Diamond Milling Co., 14 T.C. 74 (1950), affirmed per curiam 187 F. 2d 718 (C.A. 5, 1951), certiorari denied 342 U.S. 827 (1951). See H. Rept. No. 1337, to accompany H.R. 8300 (Pub. L. No. 591), 83d Cong., 2d Sess., p. A109 (1954); S. Rept. No. 1622, to accompany H.R. 8300 (Pub. L. No. 591), 83d Cong., 2d Sess., p. 48 (1954). Prior to 1954, tbe provisions of tbe 1939 Code technically forced tbe acquiring corporation to take a carryover basis in tbe distributed assets, regardless of bow much or bow little it paid for tbe subsidiary’s stock. However, tbe substituted basis result was attainable in tbe courts under tbe Kimbell-Diamond doctrine which employed fictions and a subjective intent standard to determine if a substituted basis was warranted. See United States v. M.O.J. Corporation, 274 F. 2d 713 (C.A. 5, 1960); United States v. Mattison, 273 F. 2d 13 (C.A. 9, 1959); Georgia-Pacific Corporation v. United States, 264 F. 2d 161 (C.A. 5, 1959); Commissioner v. Ashland Oil & R. Co., 99 F. 2d 588 (C.A. 6, 1938), certiorari denied 306 U.S. 661 (1939); North American Service Co., 33 T.C. 677 (1960); Orr Mills, 30 T.C. 150 (1958); Estate of James F. Suter, 29 T.C. 244 (1957); Montana-Dakota Utilities Co., 25 T.C. 408 (1955); H. B. Snively, 19 T.C. 850 (1953), affd. 219 F. 2d 266 (C.A. 5, 1955); Kimbell-Diamond Milling Co., supra; Koppers Coal Co., 6 T.C. 1209 (1946). ■ Tbe purpose for enacting section 334(b) (2) was to provide a mechanical test for determining whether tbe Kimbell-Diamond doctrine is applicable in determining tbe basis of assets acquired by tbe circuitous route of acquiring tbe stock of tbe corporation which owned those assets and then liquidating tbat corporation. Under section 334(b)(2) any corporation fulfilling tbe conditions set out in it must" }, { "docid": "6945775", "title": "", "text": "to operate the terminal through a subsidiary corporation and except for tax considerations Old Nassau would fulfill its objectives just as well as New Nassau. In substance, there was nothing more than the purchase by Reliance of the stock of Old Nassau for cash. The second step, whereby Old Nassau transferred its assets to New Nassau in exchange for stock which was thereupon distributed to Reliance, had no business purpose. Its only purpose was to get a “stepped-up” basis for the assets of Old Nassau. As such, it may be disregarded. Davant v. Commissioner, 366 F. 2d 874 (C.A. 5, 1966) , In this respect, the facts are distinguishable from The South Bay Corporation v. Commissioner, 345 F. 2d 698 (C.A. 2, 1965), reversing 41 T.C. 888 (1964). Furthermore, to treat the purchase of the stock of Old Nassau for cash and the transfer of its assets to New Nassau some 9 months later for stock as an “abortive” reorganization in order to give New Nassau a “stepped-up” basis for the assets is wholly incompatible with the objectives of the Congress in enacting section 334(b) (2). See Pacific Transport Co. v. Commissioner, 483 F. 2d 209 (C.A. 9, 1973). It puts us right back where we started from before the enactment of section 334(b) (2) as a part of the Revenue Act of 1954. The purchase by Reliance of the stock of Old Nassau standing by itself did not change the basis for the underlying assets of Old Nassau. The addition of a second step whereby New Nassau was organized to take over such assets changed nothing. Casco Products Corp., 49 T.C. 32 (1967). It was the type of “rinky dink” which has long been disregarded by the courts under the doctrine enunciated in Gregory v. Helvering, 293 U.S. 465 (1935). See also “A Proposed Treatment of Reineorporation Transactions,” 25 Tax L. Rev. 2S2 (1070) ; Nicholson, “Recent Developments in the Reincorporation Area,” 19 Tax L. Rev. 123 (1904) ; Rice, “When Is a Liquidation Not a Liquidation for Federal Income Tax Purposes?,” 8 Stan. L. Rev. 208 (1956)." }, { "docid": "14233030", "title": "", "text": "and incidental parts of plans of reorganizations that had as their final objectives the acquisition of the transferors’ assets. Contrast Piedmont Financial Company, Inc., 1932, 26 B.T.A. 1221, 1224, with Warner Company, 1932, 26 B.T.A. 1225, 1228. Similarly, it is not possible in principle to avoid determining the identity of the full transaction in reality involved and to identify the total of the steps that make up the substance of that transaction. The predetermined program of uniting the properties of all three of the companies in petitioner as an operating company and in a -new ultimate beneficial ownership, that, dominantly, of Collins, defines the real terms of the full transaction involved. In that transaction Collins’ intermediate acquisition and disposition to petitioner of the transferors’ stocks were transitory steps and not independent, unrelated ventures into stock ownership. The “Kimbell-Diamond rule” (Kimbell Diamond Milling Co., 1950, 14 T.C. 74, aff’d, 5th Cir. 1951, 187 F.2d 718) is not strictly involved, since it dealt with an acquisition of stock as a means of acquiring assets followed immediately by a liquidation that would have been regarded as a basis-preserving tax-free liquidation if the transactional purpose — acquiring assets rather than stock — had not deprived the intermediate stock acquisition of tax significance. But it illustrates that essential transactional purpose telescopes steps even when the intermediate step of stock acquisition, as in Kimbell-Diamond, is an indispensable event in the making of the transaction and not an empty and dispensable circuity or multiplication of steps. Cf. State of Minnesota Tea Co. v. Helvering, 1938, 302 U.S. 609, 612-613, 58 S.Ct. 393, 82 L.Ed. 474; Pickard v. Commissioner of Internal Revenue, 2d Cir. 1940, 113 F.2d 488. The “step analysis” of transactions does not operate in terms of an estoppel of taxpayers to deny the forms of their transactions but in terms of the reality of the transactions. Commissioner of Internal Revenue v. Ashland Oil & Refining Co., 6th Cir. 1938, 99 F.2d 588, 591; cf. Ahles Realty Corporation v. Commissioner of Internal Revenue, 2d Cir. 1934, 71 F.2d 150; Bassick v. Commissioner of Internal Revenue, 2d" }, { "docid": "2816854", "title": "", "text": "U.S. 920 (1950); see Scientific Instrument Co., 17 T.C. 1253 (1952), affirmed per curiam 202 F. 2d 155 (C.A. 6, 1953). As a general rule, a taxpayer cannot insulate himself from taxation merely by assigning a right to income to another. Commissioner v. Sunnen, supra; Helvering v. Horst, 311 U.S. 112 (1940); Corliss v. Bowers, supra; Lucas v. Earl, 281 U.S. 111 (1930). If the putative assignor performs services (Lucas v. Earl), retains the property (Helvering v. Horst), or retains the control over the use and enjoyment of the income (Commissioner v. Sunnen; Corliss v. Bowers), the liability for the tax remains on his shoulders. However, if the entire interest in the property is transferred and the assignor retains no incidence of either direct or indirect control, then the tax on the income rests on the as-signee. Blair v. Commissioner, 300 U.S. 5 (1937); Carrington v. Commissioner, supra; Behrend v. United States, supra; DeWitt y. United States, supra; Humacid Co., 42 T.C. 894 (1964); Winton v. Kelm, supra; Apt v. Birmingham, supra. Despite the undoubted validity of those doctrines, we find them to be inapplicable in this case. Similar attacks have been presented by the respondent in a variety of cases involving gifts of stock followed by its redemption, and the attacks have generally been rejected by the courts. Grove v. Commissioner, 490 F. 2d 241 (C.A. 2, 1973), affirming a Memorandum Opinion of this Court; Carrington v. Commissioner, 476 F. 2d 704 (C.A. 5, 1973); Behrend v. United States, an unreported case (C.A. 4, 1972, 31 A.F.T.R. 2d 73-406, 73-1 U.S.T.C. par. 9123); DeWitt v. United States, 503 F. 2d 1406 (Ct. Cl. 1974); Sheppard v. United States, 361 F. 2d 972 (Ct. Cl. 1966); Winton v. Kelm, 122 F. Supp. 649 (D. Minn. 1954); Apt v. Birmingham, 89 F. Supp. 361 (N.D. Iowa 1950); see Humacid Co., supra. The petitioner wished to have the college become a nonprofit organization, and there were two paths which he could have taken — he could have had the stock redeemed and then made a contribution of the assets, or he could" }, { "docid": "2816851", "title": "", "text": "because the petitioner conceived the plan for the transfer of the college to the foundation and controlled all parties to that transfer, there was, in substance, no gift of stock to the foundation. He invoked the step-transaction doctrine and suggested that since the various steps toward the accomplishment of the petitioner’s objective were interdependent, they should be ignored for tax purposes. Finally, he asserted that the petitioner had the power to bring about a redemption of his stock and that, therefore, there was in effect merely an assignment of income by him. The principles urged by the respondent are sound and well established in our tax law. The incidence of taxation depends upon the substance of the transaction and not mere formalism. Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945). Taxation is not so much concerned with refinements of title as it is with actual command over the property. Corliss v. Bowers, 281 U.S. 376, 378 (1930); see also Commissioner v. P. G. Lake, Inc., 356 U.S. 260 (1958); Helvering v. Clifford, 309 U.S. 331 (1940); Griffiths v. Commissioner, 308 U.S. 355 (1939); Sachs v. Commissioner, 277 F. 2d 879, 882-883 (C.A. 8, 1960), affirming 32 T.C. 815 (1959). Under such cases, a mere transfer in form, without substance, may be disregarded for tax purposes. Commissioner v. P. G. Lake, Inc., supra; Commissioner v. Court Holding Co., supra; Commissioner v. Sunnen, 333 U.S. 591 (1948); Helvering v. Clifford, supra; Corliss v. Bowers, supra; Richardson v. Smith, 102 F. 2d 697 (C.A. 2, 1939); Howard Cook, 5 T.C. 908 (1945); J. L. McInerney, 29 B.T.A. 1 (1933), affd. 82 F. 2d 665 (C.A. 6, 1936). As a corollary to the general proposition of those cases, it has been stated by the Supreme Court that “A given result at the end of a straight path is not made a different result because reached by following a devious path.” Minnesota Tea Co. v. Helvering, 302 U.S. 609, 613 (1938). Accordingly, where a taxpayer has embarked on a series of transactions that are in substance a single, unitary, or indivisible transaction, the" }, { "docid": "2816852", "title": "", "text": "U.S. 331 (1940); Griffiths v. Commissioner, 308 U.S. 355 (1939); Sachs v. Commissioner, 277 F. 2d 879, 882-883 (C.A. 8, 1960), affirming 32 T.C. 815 (1959). Under such cases, a mere transfer in form, without substance, may be disregarded for tax purposes. Commissioner v. P. G. Lake, Inc., supra; Commissioner v. Court Holding Co., supra; Commissioner v. Sunnen, 333 U.S. 591 (1948); Helvering v. Clifford, supra; Corliss v. Bowers, supra; Richardson v. Smith, 102 F. 2d 697 (C.A. 2, 1939); Howard Cook, 5 T.C. 908 (1945); J. L. McInerney, 29 B.T.A. 1 (1933), affd. 82 F. 2d 665 (C.A. 6, 1936). As a corollary to the general proposition of those cases, it has been stated by the Supreme Court that “A given result at the end of a straight path is not made a different result because reached by following a devious path.” Minnesota Tea Co. v. Helvering, 302 U.S. 609, 613 (1938). Accordingly, where a taxpayer has embarked on a series of transactions that are in substance a single, unitary, or indivisible transaction, the courts have disregarded the intermediary steps and have given credence only to the completed transaction. E.g., Redwing Carriers, Inc. v. Tomlinson, 399 F. 2d 652, 654 (C.A. 5, 1968); May Broadcasting Co. v. United States, 200 F. 2d 852 (C.A. 8, 1953); Whitney Corporation v. Commissioner, 105 F. 2d 438 (C.A. 8, 1939), affirming 38 B.T.A. 224 (1938); Commissioner v. Ashland Oil & R. Co., 99 F. 2d 588 (C.A. 6, 1938), reversing sub nom. Swiss Oil Corporation, 32 B.T.A. 777 (1935), certiorari denied 306 U.S. 661 (1939); James Kuper, 61 T.C. 624 (1974); Kimbell-Diamond Milling Co., 14 T.C. 74 (1950), affirmed per curiam 187 F. 2d 718 (C.A. 5, 1951), certiorari denied 342 U.S. 827 (1951). Transactions that are challenged as intermediary steps of an integrated transaction are disregarded only when found to be so interdependent that the legal relations created by one transaction would have been fruitless without the completion of the series. American Bantam Car Co., 11 T.C. 397, 405 (1948), affd. 177 F. 2d 513 (C.A. 3, 1949), certiorari denied 339" }, { "docid": "10912851", "title": "", "text": "that it is nothing more than a lease described in section 280A(c)(3). However, in my judgment, it is our responsibility to take a broader view of the arrangement, to examine all the surrounding circumstances, and to recognize that the effect of the arrangement is to subvert the limitations of section 280A(c)(l) on the use of a personal residence for business purposes. Hence, I believe the deductions should be disallowed. It is well settled that, generally, the tax consequences of a transaction are to be based upon its substance, not its form. Gregory v. Helvering, 293 U.S. 465 (1935); Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945); Helvering v. Clifford, 309 U.S. 331 (1940). It is equally well settled that to determine the substance of a transaction, the various related steps must be judged together, not separately. Gregory v. Helvering, supra; Helvering v. Alabama Asphaltic Limestone Co., 315 U.S. 179, 184-185 (1942); Minnesota Tea Co. v. Helvering, 302 U.S. 609, 613 (1938). Form is too ephemeral; it is too subject to mistake or manipulation. Schmitz v. Commissioner, 51 T.C. 306 (1968), affd. sub nom. Throndson v. Commissioner, 457 F.2d 1022 (9th Cir. 1972); Hook v. Commissioner, 58 T.C. 267 (1972). Tax consequences, in fairness to both the taxpayer and the Commissioner, should be based on harder stuff. In the venerable case of Gregory v. Helvering, supra, the taxpayer owned the stock of the old corporation. A new corporation was formed. The old corporation transferred some of its property to the new corporation, and the stock of the new corporation was issued to the taxpayer. Thereafter, the taxpayer liquidated the new corporation and received a distribution of the property. The taxpayer maintained that there was a tax-free corporate reorganization and that she received the property as a liquidating distribution. In his famous opinion (69 F.2d 809 (2d Cir. 1934)), Judge Learned Hand recognized that if the transactions were separated, they came within the literal terms of the statute. However, he observed: It is quite true * * * that as the articulation of a statute increases, the room for interpretation" }, { "docid": "20107660", "title": "", "text": "have determined that the transactions were not shaped solely by tax-avoidance considerations, and have not been shown to be shams, we must still determine whether the form in which the transactions were cast was inconsistent with their true nature. \"To permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.” Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945). See Gregory v. Helvering, 293 U.S. 465 (1935). Respondent takes the position that the formation of Queen, the prepayment of feed by Queen, the formation of D & S, and the purported installment sale of Queen stock to D & S, followed by the immediate liquidation of Queen, were preconceived steps in a single plan of action. Respondent asserts that \"there was no purpose for the creation of Queen other than to set the stage for the installment sale that would give rise to the 15-year deferral,” and that there was no business purpose for the prepayment of feed. Thus he asks us to apply the step-transaction doctrine to disregard the creation of Queen and all steps taken by Queen, including the prepayment of feed and the installment sale, and to recognize D & S as the entity actually conducting the feeding operation, so as to disallow the entire subchapter S loss in 1971 and collapse the transaction into 1972 and 1973 when the actual feeding took place. Although we agree that application of the step-transaction doctrine is proper in this case, our application does not produce the result outlined by respondent. Where an interrelated series of steps are taken pursuant to a plan to achieve an intended result, the tax consequences are to be determined not by viewing each step in isolation, but by considering all of them as an integrated whole. See D’Angelo Associates, Inc. v. Commissioner, 70 T.C. 121, 129 (1978); Redwing Carriers, Inc. v. Tomlinson, 399 F.2d 652, 658 (5th Cir. 1968); Atlee v. Commissioner, 67 T.C. 395 (1976); King Enterprises, Inc. v. United" }, { "docid": "6945770", "title": "", "text": "case as to the basis of the assets acquired by New Nassau. As I understand the majority holding, the basis of these assets is not being determined under either the provisions of section 384(b) (2) or the doctrine of Kimbell-Diamond Milling Co., 14 T.C. 74 (1950), affirmed per curiam 187 F. 2d 718 (C.A. 5, 1951). Therefore, under the provisions of section 1012 of the Code, the basis of the assets “shall be the cost” of such assets, and under section 1.1012-1 (a), Income Tax Regs., “the cost is the amount paid for such property in cash or other property.” Here, the 'assets of Old Nassau were paid for by New Nassau with stock and assumption of liability. We have long recognized that where assets are exchanged for stock in a taxable transaction, the cost of the assets is the fair market value of the stock issued therefor, and if the fair market value of the stock cannot be otherwise ascertained and all or substantially all of the corporate stock is issued for the assets, the value of the stock is to be measured by the fair market value of the property received in exchange for the stock. MacCallum Gauge Co., 32 B.T.A. 544, 549 (1935). Of course, if liabilities are assumed as part of the property paid for the assets acquired, the amount of the liabilities assumed is added to the fair market value of the stock. Kalmon Shoe Manufacturing Co. v. Commissioner, 321 F. 2d 189 (C.A. 8, 1963), affirming a Memorandum Opinion of this Court. Here the facts show that Reliance acquired approximately 85 percent of the Old Nassau stock on September 14,1961, nearly 9 months prior to the date of the sale of the assets of Old Nassau to New Nassau. It is, in my view, incorrect to hold, as the majority in effect does, that the amount paid by Reliance for the shares of Old Nassau represents the fair market value 9 months later of the stock of New Nassau exchanged for the stock of Old Nassau in consideration for the assets of Old Nassau." }, { "docid": "14233031", "title": "", "text": "a liquidation that would have been regarded as a basis-preserving tax-free liquidation if the transactional purpose — acquiring assets rather than stock — had not deprived the intermediate stock acquisition of tax significance. But it illustrates that essential transactional purpose telescopes steps even when the intermediate step of stock acquisition, as in Kimbell-Diamond, is an indispensable event in the making of the transaction and not an empty and dispensable circuity or multiplication of steps. Cf. State of Minnesota Tea Co. v. Helvering, 1938, 302 U.S. 609, 612-613, 58 S.Ct. 393, 82 L.Ed. 474; Pickard v. Commissioner of Internal Revenue, 2d Cir. 1940, 113 F.2d 488. The “step analysis” of transactions does not operate in terms of an estoppel of taxpayers to deny the forms of their transactions but in terms of the reality of the transactions. Commissioner of Internal Revenue v. Ashland Oil & Refining Co., 6th Cir. 1938, 99 F.2d 588, 591; cf. Ahles Realty Corporation v. Commissioner of Internal Revenue, 2d Cir. 1934, 71 F.2d 150; Bassick v. Commissioner of Internal Revenue, 2d Cir. 1936, 85 F.2d 8. Where, as here, the transaction presents the determining elements of a change in ultimate ownership and an initial purpose or intention to acquire assets rather than stock as such, each intermediate stage to the final end is not to be given the separate tax significance that belongs only to self-complete business transactions, but the full transaction is to be weighed in its overall terms for its tax characterization. Prairie Oil & Gas Co. v. Motter, 10th Cir. 1933, 66 F.2d 309; Republic Steel Corp. v. United States, 1941, 40 F.Supp. 1017, 94 Ct.Cl. 476; Southwell Combing Co., 1958, 30 T.C. 487, 498; North American Service Co., 1960, 33 T.C. 677. The transitory ownership of Collins does not define the transaction as a “reorganization” in despite of the overall change in the significant beneficial interests. Cf. Helvering v. Bashford, 1938, 302 U.S. 454, 458, 58 S.Ct. 307, 82 L.Ed. 367; Helvering v. State of Alabama Asphaltic Limestone Co., 1942, 315 U.S. 179, 184-185, 62 S.Ct. 540, 86 L.Ed. 775; Georgia-Pacific Corporation" }, { "docid": "20731236", "title": "", "text": "United were merely means to that end and part of a single planned transaction. In these circumstances, the $450,000 payment represents in substance a profit to AOTC from the proposed tanker sale. Cf. Nicholas Jacobs, 21 T.C. 165, affirmed 224 F. 2d 412 (C.A. 9); J. Roger DeWitt, 30 T.C. 1. We are not persuaded by petitioners’ argument that AOTC could not have “sold” the tankers or distributed dividends because its agreement with Metropolitan prevented it from so doing. The agreement may have foreclosed a direct sale and dividend distribution by AOTC but it did not preclude realization of the same result by indirect means. Tax consequences are determined by the substance of a transaction rather than by the means employed to transfer legal title. Cf. Griffiths v. Helvering, 308 U.S. 355; Commissioner v. Court Holding Co., 324 U.S. 331; United States v. Cumberland Public Service Co., 338 U.S. 451. As was stated in the Jacobs case, supra at 169: Although petitioner went through all of the formal steps of activating a dormant corporation, transferring the property in question thereto in exchange solely for its stock and then “selling” such stock to a corporation dominated and controlled by one, who, it is admitted, was anxious to acquire the land by whatever means, it seems clear to us that it was of no avail taxwise. All of the separate transfers were but component steps of a single transaction, namely, the sale and transfer of petitioner’s Sacramento property to MacBride or to a corporation controlled by him. * * * Moreover, even if there was no enforceable agreement or binding commitment on the part of petitioner to sell his stock in Subdivision prior to its issuance to him, it is properly to be inferred from the evidence at hand that there did exist an understanding to such effect, albeit implied. * * * Consequently, we are constrained to disregard the corporate entity of Subdivision, and hold that it served only as a conduit through which petitioner was enabled to effect a sale of property in the ordinary course of his real estate" }, { "docid": "2816853", "title": "", "text": "courts have disregarded the intermediary steps and have given credence only to the completed transaction. E.g., Redwing Carriers, Inc. v. Tomlinson, 399 F. 2d 652, 654 (C.A. 5, 1968); May Broadcasting Co. v. United States, 200 F. 2d 852 (C.A. 8, 1953); Whitney Corporation v. Commissioner, 105 F. 2d 438 (C.A. 8, 1939), affirming 38 B.T.A. 224 (1938); Commissioner v. Ashland Oil & R. Co., 99 F. 2d 588 (C.A. 6, 1938), reversing sub nom. Swiss Oil Corporation, 32 B.T.A. 777 (1935), certiorari denied 306 U.S. 661 (1939); James Kuper, 61 T.C. 624 (1974); Kimbell-Diamond Milling Co., 14 T.C. 74 (1950), affirmed per curiam 187 F. 2d 718 (C.A. 5, 1951), certiorari denied 342 U.S. 827 (1951). Transactions that are challenged as intermediary steps of an integrated transaction are disregarded only when found to be so interdependent that the legal relations created by one transaction would have been fruitless without the completion of the series. American Bantam Car Co., 11 T.C. 397, 405 (1948), affd. 177 F. 2d 513 (C.A. 3, 1949), certiorari denied 339 U.S. 920 (1950); see Scientific Instrument Co., 17 T.C. 1253 (1952), affirmed per curiam 202 F. 2d 155 (C.A. 6, 1953). As a general rule, a taxpayer cannot insulate himself from taxation merely by assigning a right to income to another. Commissioner v. Sunnen, supra; Helvering v. Horst, 311 U.S. 112 (1940); Corliss v. Bowers, supra; Lucas v. Earl, 281 U.S. 111 (1930). If the putative assignor performs services (Lucas v. Earl), retains the property (Helvering v. Horst), or retains the control over the use and enjoyment of the income (Commissioner v. Sunnen; Corliss v. Bowers), the liability for the tax remains on his shoulders. However, if the entire interest in the property is transferred and the assignor retains no incidence of either direct or indirect control, then the tax on the income rests on the as-signee. Blair v. Commissioner, 300 U.S. 5 (1937); Carrington v. Commissioner, supra; Behrend v. United States, supra; DeWitt y. United States, supra; Humacid Co., 42 T.C. 894 (1964); Winton v. Kelm, supra; Apt v. Birmingham, supra. Despite the undoubted" }, { "docid": "20107665", "title": "", "text": "We have substantial other businesses which could have been incorporated within that framework.” Such general testimony does not establish a business reason for the formation of the formally discrete steps taken by petitioners. On the basis of the record before us and the inferences to be drawn therefrom, we conclude that Queen was formed as a vehicle through which petitioners hoped to achieve significant tax advantages. Initially, petitioners seized upon the liberal tax accounting treatment made available to farmers for prepaid feed expenses. By consenting to Queen’s election to be treated as a small business corporation, Packard insured that the loss incurred by Queen for the prepayment of feed would be passed through to her as the corporation’s sole shareholder, and as such, would offset other unrelated income. Under the guise of an installment sale, petitioner’s tax-avoidance aims were twofold: first, to step up the basis in the cattle-feeding assets received by D & S upon the liquidation of Queen, including the feed previously expensed by Queen, and thereby secure additional deductions; and second, to take advantage of the provisions of section 453, so as to defer the gain on the sale over a period of 15 years. Queen served no business purpose and performed no function other than to enable petitioners to stage the purported sale and liquidation. We therefore apply the step-transaction doctrine to recast the transaction as though petitioners had formed D & S from the outset to purchase the feed and conduct the feeding operations. We believe that form reflects the true substance of the transaction. See Commissioner v. Court Holding Co., 324 U.S. 331 (1945); Gregory v. Helvering, 293 U.S. 465 (1935); Jacobs v. Commissioner, 21 T.C. 165 (1953), affd. 224 F.2d 412 (9th Cir. 1955). The result of our application of the step-transaction doctrine is that D & S has no basis in feed after 1971. Thus, in calculating its costs deductible from proceeds of sale in 1972, D & S cannot include any amounts attributable to the purported purchase of Queen’s assets, including fully expensed feed. In describing transactions of Queen in the" } ]

[ { "docid": "1385103", "title": "", "text": "effect it had the same operation as if instead of saying that tho laws referred to shall continue in force it had enacted them in terms. Tho form of words is not material when Congress manifests its will that certain rules shall govern henceforth. Swigart v. Baker, 229 U. S. 187, 198 [33 S. Ct. 645, 57 L. Ed. 1143]. Of course, Congress may tax what it also forbids. 256 U. S. 462 [41. S. Ct. 551, 65 L. Ed. 1043]. For offenses committed after the new law, United States v. Yuginovieh cannot be relied upon.” The offenses charged in the indictment were alleged to have been committed after the Willis-Campbell Act had become effective, and were existing offenses, when committed. The plea of guilty waived all defenses other than that the indictment charged no offenses under the laws of the United States. Second. The appellant contends that tho sentence of three years was excessive upon the theory that the indictment, though containing three separate counts, charged but one offense under the revenue laws, and justified the imposition of two years only, which was the maximum term of imprisonment f,or any of the offenses charged in any of the three separate counts. Whether there would have been but one offense charged had all counts of the indictment, as properly construed, related to the identical same faets, need not be determined. All the counts charged the offense to have been committed “about or on the 7th day of November in the year of our Lord nineteen hundred and twenty-seven.” Under such averments the appellee could have proven without variance any offenses that had been committed at any time prior to the date alleged within the period of the Statute of Limitations. Upon the appellant’s plea of guilty to the indictment, the District Court could rightfully assume that the three counts presented separate offenses, and this court on appeal must make the same assumption. The appellant’s plea of guilty to the three counts of the indictment authorized imposition of the maximum upon every one of the three counts. The sentence of three" } ]

[ { "docid": "17138151", "title": "", "text": "returned a verdict of guilty as to all four counts of the indictment. On July 30, 1964 the defendant was sentenced to a 10-year prison term on each count, to run concurrently. The same day, Koransky, defendant’s court-appointed trial counsel, was relieved at his request. We appointed the defendant’s present counsel on January 18, 1965 to prosecute this appeal. It may be noted parenthetically that Hutchins was sentenced to a 15-year prison term on September 17, 1964, and that the defendant’s brother Jeffrey, who had received a severance, pleaded guilty on November 9, 1964, and was sentenced to a 15-year term. What has been said brings us to the defendant’s appeal from his conviction and his challenge to the District Court’s denial of his motion for a new trial. In his appeal from the conviction the defendant urges (1) the indictment was defective in that it charged that the offenses charged were committed “in the State and District of New Jersey” and did not name the city where the robbed bank was located; (2) he was not represented by counsel at his arraignment; (3) Miss Herrick was “pressured” by government agents into identifying him and, moreover, her identification was “faulty”; (4) the evidence was insufficient to sustain the jury’s guilty verdict, and (5) he was improperly questioned by prosecuting counsel and the latter made prejudicial statements in his summation to the jury. There is no merit in the contention that the indictment was defective because it did not specify the particular city where the robbery took place. The indictment sufficiently apprised the defendant of the crime charged so as to enable him to prepare his defense, and to make the judgment, whether of acquittal or conviction, a bar to second prosecution for the same offense. Anderson v. United States, 215 F.2d 84 (6 Cir. 1964), cert. den., sub nom., Lewis v. United States, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698. An indictment alleging commission of an offense within the jurisdiction of the trial court, meets the required certainty of place of commission. Flores v. United States, 338 F.2d" }, { "docid": "11981946", "title": "", "text": "trial court found that petitioner was not denied the assistance of counsel, declined the services of counsel, and intelligently, competently, and understanding^ waived his right to the assistance of counsel- The constitutional right of accused to have the assistance of counsel may be waived. The burden rested upon petitioner to establish that he did not com-patently and intelligently waive his constitutionai right. The evidence fully supports the finding of the trial court that petitioner com-patently and intelligently waived his constitulional right to the assistance of' counsel. The indictment charged the offense defined in § 320, supra. By pleading guilty to the indictment, petitioner admitted the facts therein averred. A plea of guilty is a confession of guilt and amounts to a conviction. Where one seeks discharge from confinement, after conviction or plea of guilty, upon an application for a writ of habeas corpus, the only questions presented are whether petitioner was convicted by a court having jurisdiction of his person and the offense, and whether the sentence pronounced was one within the power of the court. The judgment is affirmed, Buckner v. Hudspeth, 10 Cir., 105 F.2d 396, 397; McCoy v. Hudspeth, 10 Cir., 106 F.2d 810, 811; Wilson v. Hudspeth, 10 Cir., 106 F.2d 812, 813; Moore v. Hudspeth, 10 Cir., 110 F.2d 386, 388. People v. Kaiser, 206 N.Y. 46, 99 N.E. 195; Green v. United States, 40 App.D.C. 426, 46 L.R.A.,N.S., 1117; Kachnic v. United States, 9 Cir., 53 F.2d 312, 315, 79 A.L.R. 1366; Weir v. United States, 7 Cir., 92 F.2d 634, 635, 114 A.L.R. 481. Moore v. Aderhold, 10 Cir., 108 F.2d 729, 732; Garrison v. Hudspeth, 10 Cir., 108 F.2d 733." }, { "docid": "23339890", "title": "", "text": "of fact relating to the jurisdiction of the court over the crime charged or over appellant was presented. The denial of the motion for modification and correction of judgment and sentence is affirmed. United States v. Berg, 79 F.Supp. 1021. Knewel v. Egan, 268 U.S. 442, 446, 45 S.Ct. 522, 69 L.Ed. 1036. “Extra-record evidence referred to in brief will not be considered on appeal.” Morris v. District of Columbia, 75 U.S.App.D.C. 284, 124 F.2d 284. “ * * * plea * * * means guilty as charged in the indictment.” 9 Edmunds, Cyc.F.Pro., 2nd Ed., Sec. 4231, page 365. Ex parte Farlow, D.C. 272 F. 910, 911. “The plea of guilty waived all defenses other than that the indictment charged no offenses under the laws of the United States.” Rice v. United States, 5 Cir., 30 F.2d 681. “The pleas of guilty admitted all averments of fact and waived any defect in form of allegations.” Weir v. United States, 7 Cir., 92 F.2d 634, 635, 114 A.L.R. 481. “Waives all defects not jurisdictional.” Weir v. United States, supra. “ * * * which relieved the government of the necessity of further proof on that question of fact.” United States v. Luvisch, D.C., 17 F.2d 200, 202. \"* s= * same position * * * as though he had been found guilty by verdict of a jury.” Kachnie v. United States, 9 Cir., 53 F.2d 312, 315, 79 A.L.R. 1366. “ * * * the District Court could rightfully assume that the three counts presented separate offenses.” Rice v. United States, supra. Ex parte Thomas, D.C., 55 F.Supp. 30. All this is well established in this circuit. Forthoffer v. Swope, 9 Cir., 103 F.2d 707, 708. Weatherby v. United States, 10 Cir., 150 F.2d 465, 466. “Consequently, by the pleas, appellants admitted that the banks in question were ‘nonmember banks’ but that they were insured, participating in the benefits created by the Congress under the Federal Deposit Insurance Corporation Act [12 U.S.C.A. § 264]. The questions submitted, therefore, are wholly legal in character.” Weir v. United States, supra. Brady v." }, { "docid": "966998", "title": "", "text": "the statute is constitutional and whether the information charged a crime. The plea of guilty did not foreclose the appellant from the review he now seeks.” And in United States v. Gonzalez-Parra, 438 F.2d 694 (5th Cir. 1971), the appellant challenged the constitutionality of an immigration law, 8 U.S.C. § 1326. Citing footnote 2 in Haynes, supra, the Fifth Circuit held: “The Supreme Court has declared, however, that where defendant moves to dismiss an indictment on the ground that the statute he is charged with having violated is unconstitutional, and the trial judge denies the motion to dismiss, the defendant may plead guilty and yet preserve the constitutional issue for appeal.” See, accord, Corwin v. United States, 423 F.2d 33 (9th Cir. 1970), cert. den. 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271 (1970); Burton v. United States, 414 F.2d 261, 262 (5th Cir. 1969); Askew v. State of Alabama, 398 F.2d 825 (5th Cir. 1968). These general rules are well summarized in 1 Wright, Federal Practice and Procedure: Criminal § 175b, as follows : The entry of a plea of guilty has the effect of admitting all material facts alleged in the charge. No further proof of the crime is required . . . The plea is not merely evidence for the government. It is a formal criminal pleading, waiving a trial and a defense, and leaving the court nothing to do but to impose sentence and enter judgment. A defendant who has pleaded guilty is not barred from claiming that the indictment or information failed to state an offense, or that the statute under which he was charged is unconstitutional, or that the pleading showed on its face that the prosecution was barred by the statute of limitations. The plea of guilty does waive, however, all nonjurisdictional defects in the proceeding. In particular, it bars any claim that the prosecution obtained evidence unlawfully, or that the defendant was illegally detained, or that the prosecution constituted double jeopardy, (footnotes omitted and emphasis supplied). See, Hughes v. United States, 371 F.2d 694 (8th Cir. 1967); Hoffman v. United States," }, { "docid": "966999", "title": "", "text": ": The entry of a plea of guilty has the effect of admitting all material facts alleged in the charge. No further proof of the crime is required . . . The plea is not merely evidence for the government. It is a formal criminal pleading, waiving a trial and a defense, and leaving the court nothing to do but to impose sentence and enter judgment. A defendant who has pleaded guilty is not barred from claiming that the indictment or information failed to state an offense, or that the statute under which he was charged is unconstitutional, or that the pleading showed on its face that the prosecution was barred by the statute of limitations. The plea of guilty does waive, however, all nonjurisdictional defects in the proceeding. In particular, it bars any claim that the prosecution obtained evidence unlawfully, or that the defendant was illegally detained, or that the prosecution constituted double jeopardy, (footnotes omitted and emphasis supplied). See, Hughes v. United States, 371 F.2d 694 (8th Cir. 1967); Hoffman v. United States, 327 F.2d 489 (9th Cir. 1964); Thomas v. United States, 290 F.2d 696 (9th Cir. 1961), cert. den. 368 U.S. 964, 82 S.Ct. 446, 7 L.Ed.2d 401 (1962). It would appear, therefore, that the Haynes rule is of limited applicability and is constricted to a narrow class of constitutional questions. It is applicable only where the jurisdiction of the trial court to proceed on the criminal charges is directly . placed in question. The Haynes rule does not apply in cases where a guilty plea has been entered despite the presence of non-jurisdictional constitutional questions, usually arising out of the Fourth and Fifth Amendments. This is not to say that there is not substantial support for extending the Haynes rule to most guilty plea situations. However, despite the existence of that respectable authority, we decline to adopt as a rule in the Sixth Circuit the procedure allowed by the district court in the instant case. To the extent this procedure allows a defendant to plead guilty, contingent on his right to appeal on non-jurisdictional grounds" }, { "docid": "14839926", "title": "", "text": "LEWIS, Circuit Judge. This is an appeal from an order of' the District Court for the District of Colorado denying defendant’s motion for relief under 28 U.S.C. § 2255. A history of the prosecution is pertinent to the-present appeal. In 1961, defendant was convicted upon two counts of an indictment charging him with the receipt, concealment and sale of narcotic drugs unlawfully imported in violation of 21 U.S.C. § 174. The judgments of conviction were appealed to this court and we reversed for error committed during the course of the trial. Casias v. United States, 10 Cir., 302 F.2d 513. After remand, the case was set for re-trial on July 13, 1962. On such date, defendant appeared with his counsel and informed the court that he was willing to waive indictment and plead guilty to the charge contained in an information alleging that he had unlawfuly sold, dispensed and distributed a quantity of narcotics in violation of 26 U.S.C. § 4704(a). Upon entering such a plea, the United States Attorney indicated his intention to dismiss the indictment charging violations of 21 U.S.C. § 174. The court accepted the plea of guilty to the information and granted the motion to dismiss the indictment. Defendant now asserts that the information to which he pleaded guilty is inadequate to protect him against double jeopardy and thus void and subject to attack under 28 U.S.C. § 2255. Emphasis is placed upon the fact that the information does not contain the name of the purchaser of the narcotics. The name of the purchaser is not an element of an offense charged under 26 U.S.C. § 4704(a) and an indictment or information not setting forth the name is not constitutionally defective for such lack and subject to collateral attack. Nor need an indictment or information plead an offense in such detail as to be self-sufficient as a bar to further prosecution for the same offense. The judgment constitutes the bar. Martin v. United States, 10 Cir., 285 F.2d 150. And the extent of the judgment may be determined from an examination of the record as a" }, { "docid": "6728209", "title": "", "text": "to crimes oc-. curring after December 31, 1946, the date upon which the President proclaimed the cessation of hostilities, and that, therefore, said Wartime Suspension of Limitations Act was not applicable to the crimes charged against defendant in Counts 3 through 22 of the information, but, rather, they were governed, as to limitations, by the terms of Section 3282, Title 18 U.S.C.A., which provides: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.” The District Attorney then questions, however, whether the matter of limitations is jurisdictional, or a mere procedural matter of affirmative defense which was waived by defendant through failure to assert it defensively and by his plea of guilty; and, without citation of authority, he states the latter to be his view and checks the question up to the Court for decision. I find a good many cases, stemming from United States v. Cook, 17 Wall. 168, 84 U.S. 168, 179, 21 L.Ed. 538, such as United States v. Brace, D.C., 143 F. 703, Greene v. United States, 5 Cir., 154 F. 401, 411, United States v. Andem, D.C., 158 F. 996, 999, Evans v. United States, 4 Cir., 11 F.2d 37, 39, Hughes v. United States, 6 Cir., 114 F.2d 285, 288, Capone v. Aderhold, 5 Cir., 65 F.2d 130, United States v. Parrino, 2 Cir., 203 F.2d 284, and United States v. Johnson, D.C. Pa., 76 F.Supp. 542, 544, holding that the bar of the statute of limitations in actions pending in a Federal court is a matter of affirmative defense, and cannot be raised by a demurrer to the indictment or information, but only by a plea in bar. . However, I believe that those cases all rest on the principle announced in United States v. Cook, supra, that the prosecution must be allowed an opportunity, in meeting the defense of limitations, to show the existence of some exception to the rule, such" }, { "docid": "1453523", "title": "", "text": "not waive a defendant’s right to indictment by a grand jury. See United States v. Meacham, 626 F.2d 503, 509-10 (5th Cir.1980). “Waiver of an indictment is an act clothed in formality.... [T]he waiver must be made in open court, defendants must be informed of the nature of and the cause for the accusation, and the court must be satisfied that the defendants waive their rights knowingly, intelligently and voluntarily.” United States v. Ferguson, 758 F.2d 843, 850-51 (2d Cir.1985). Here, the record does not show that Som knowingly, intelligently and voluntarily waived his right to be tried and convicted only upon charges presented by a grand jury. Contrary to the government’s argument, pleading guilty is not the equivalent of a waiver of the right to be charged by a grand jury. “By pleading guilty, a defendant waives many of the objections to his conviction that he otherwise could have raised on appeal. He does not, however, waive all objections.... The objection that the indictment fails to charge an offense is not waived by a guilty plea.” Meacham, 626 F.2d at 509-10 (relying on Menna v. New York, 423 U.S. 61, 62-63, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (“A guilty plea ... renders irrelevant those constitutional violations not logically, inconsistent with the valid establishment of factual guilt.... We ... hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.”)); see also United States v. Prentiss, 206 F.3d 960, 976-77 (10th Cir.2000) (stipulating at trial to the element missing from the indictment did not waive right to grand jury indictment because “the failure of the indictment to allege a federal crime cannot be cured by proof at trial by any means”); United States v. Spinner, 180 F.3d 514, 516 (3d Cir.1999); United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir.1999). Here, the claim is that the government may not constitutionally prosecute the “charge” of the enhanced firearms offense because it is not charged in an indictment. Som" }, { "docid": "9629397", "title": "", "text": "technical nicety. But, by his plea of guilty, Weatherby waived all defenses other than that the indictment charged no offense. Each count of the indictment charged the essential elements of the offense and it cannot be said as to any of such counts that it wholly failed to charge an offense. Counsel for Weatherby urges that count one, which alleges that Weatherby caused the advertisement to be inserted in the Tulsa Daily World on February 5, 1942, does not state the time when the newspapers were mailed or caused to be mailed. It does not allege specifically that the newspapers were mailed on that day, but obviously the newspapers containing the advertisement could not be mailed until after the advertisement was inserted. Count one charges that the scheme and artifice was formed on or about February 1, 1942, and he caused the advertisement to be inserted in the Tulsa Daily World about February 5, 1942, which was by the Tulsa World placed in the United States mails addressed to its mailing list of subscribers. It sufficiently appears that the unlawful use of the mails was within the statutory period of limitations. Where time is not an essential ingredient of the offense, and the indictment charges facts showing the offense was committed within the statutory period of limitations, a defect in the allegation of time is one of form only. The motion was without merit and the order appealed from is affirmed. Rude v. United States, 10 Cir., 74 F.2d 673, 675; Rosenberg v. United States, 10 Cir., 120 F.2d 935, 937; Mitchell v. United States, 10 Cir., 142 F.2d 480, 481. Mitchell v. United States, 10 Cir., 142 F.2d 480, 481; McGinley v. Hudspeth, 120 F.2d 523; Bozel v. United States, 6 Cir., 139 F.2d 153, 156. Forthoffer v. Swope, 9 Cir., 103 F.2d 707, 708; Kachnic v. United States, 9 Cir., 53 F.2d 312, 315, 79 A.L.R. 1366; Rice v. United States, 5 Cir., 30 F.2d 681; Spirou v. United States, 2 Cir., 24 F.2d 796, 797; Weir v. United States, 7 Cir., 92 F.2d 634, 635, 114 A.L.R." }, { "docid": "23660816", "title": "", "text": "that McIntosh was indicted because, as Pérsico states, “[McIntosh] participated in what now forms [sic] Racketeering Acts # 36, 37, 38, 39 and 40.” (Lopez Affidavit, dated May 14, 1985, at 8). Andrew Russo was also indicted on these racketeering acts in the superseding indictment. The “mere allegation of government misconduct [is] wholly insufficient to require the District Court to hold an evidentiary hearing.” United States v. Gilbert, 668 F.2d 94, 96-97 (2d Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d 469 (1982); accord United States v. Persico, 425 F.2d 1375, 1379 n. 5 (2d Cir.), cert. denied, 421 U.S. 950 (1975); see Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). Here, as in Gilbert, the government denies the misconduct charged, and no facts making the charge more likely than not exist. The motion is denied. L. Judgment and Commitment Orders and Transcripts of Plea Proceedings Defendants Carmine Pérsico, Russo and McIntosh seek to preclude the government from offering at trial evidence that they pleaded guilty in the Eastern District of New York to offenses involving bribery which make up part of the pattern of racketeering with which they are charged in the instant indictment. Pérsico, Russo and McIntosh were indicted in 1980 in the Eastern District on multiple counts of bribery and obstruction of justice, among other crimes, in connection with a scheme to corrupt a Special Agent of the Internal Revenue Service so as to avoid prosecution for certain crimes they had committed and-to obtain other unwarranted favors from the criminal justice system. After consultation with counsel, each decided to plead guilty to the charges described above. Pursuant to their decisions to plead guilty, they appeared separately before Judge Eugene Nickerson, who fully informed them of their constitutional rights and of the significance of their actions. They acknowledged that they understood both their rights and the consequences of pleading guilty. Then, in open court, in the presence of counsel, and under oath, Pérsico, Russo, and McIntosh each admitted his guilt. An admission by a defendant constitutes the strongest" }, { "docid": "9509228", "title": "", "text": "an evidentiary hearing with opportunity to observe the petitioner), his 1963 failure to engage the defendant in a discussion on that point prior to accepting a plea of guilty to the concealment charge does not afford a basis for setting aside the judgment of conviction as to that offense. Affirmed. . A third indictment, not here involved, Criminal No. 5132, was in three counts, and charged Strother with the unlawful interstate transportation of three different stolen Chevrolet automobiles. He pleaded guilty to all three counts. . Treated by the district court as a motion to vacate sentence under Title 28, U.S.C., Section 2255. . We distinguish the line of cases, such as Lubin v. United States, 9 Cir. 1963, 313 F.2d 419, and Romontio v. United States, 10 Cir. 1968, 400 F.2d 618, which may appear to conflict with our holding. While such cases hold that where a specific number of persons are charged with a conspiracy and all but one are acquitted, all are in the eyes of the law acquitted because a conspiracy requires some plan between two or more persons, in none of those eases did the defendant plead guilty. Rather, he faced trial as the sole remaining defendant charged with conspiracy. We emphasize the time-honored rubric that a plea of guilty is a judicial admission of the truth of the factual allegations of the indictment. Therefore a person represented by competent counsel who pleads guilty and is sentenced, as oc- eurred with Strother, should not thereafter be permitted to repudiate his solemn admission of guilt. Rather, he should be bound thereby. See the holding in a similar situation, in State v. Oats, (App.Div.1954) 32 N.J.Super. 435, 108 A.2d 641, 645; and see further, United States v. Fox, 3 Cir. 1942, 130 F.2d 56, where leave to withdraw a guilty idea was denied the remaining defendant after the charges against several co-conspirators were nolle pressed. Fox may be said to represent, if anything, an a foriiori situation, at least to the extent that the nolle prosequi is viewed as a governmental admission of inability to prove a" }, { "docid": "1453524", "title": "", "text": "guilty plea.” Meacham, 626 F.2d at 509-10 (relying on Menna v. New York, 423 U.S. 61, 62-63, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (“A guilty plea ... renders irrelevant those constitutional violations not logically, inconsistent with the valid establishment of factual guilt.... We ... hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.”)); see also United States v. Prentiss, 206 F.3d 960, 976-77 (10th Cir.2000) (stipulating at trial to the element missing from the indictment did not waive right to grand jury indictment because “the failure of the indictment to allege a federal crime cannot be cured by proof at trial by any means”); United States v. Spinner, 180 F.3d 514, 516 (3d Cir.1999); United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir.1999). Here, the claim is that the government may not constitutionally prosecute the “charge” of the enhanced firearms offense because it is not charged in an indictment. Som could not, then, have pleaded guilty to an aggravated crime not charged in the indictment. Thus, Som has not waived this claim based on the defect in the indictment. Second, plain error review is inappropriate where the defect in the indictment is jurisdictional. Where an indictment fails to allege each material element of the offense, it fails to charge that offense. See Cabrera-Teran, 168 F.3d at 143. “[A] ‘failure of the indictment to charge an offense may be treated as [a] jurisdictional’ defect, ... and an appellate court must notice such a flaw even if the issue was raised neither in the district court nor on appeal.” United States v. Foley, 73 F.3d 484, 488 (2d Cir.1996) (quoting United States v. Doyle, 348 F.2d 715, 718 (2d Cir.1965)), abrogated on other grounds by Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997); see also Fed.R.Crim.P. 12(b)(2) (objection that an indictment “fails to show jurisdiction in the court or to charge an offense ... shall be noticed by the court at" }, { "docid": "2807", "title": "", "text": "guilty is the equivalent of admitting all material facts alleged in the charge. Under § 924(c), this includes admitting to an underlying drug offense sufficient to support a conviction under that section.’ ” United States v. Powell, 159 F.3d 500, 503 (10th Cir.1998) (quoting United States v. Kelsey, 15 F.3d 152, 153 (10th Cir.1994)), cert. denied, — U.S. -, 119 S.Ct. 1088, 143 L.Ed.2d 89 (1999); see also O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (“In pleading guilty, a defendant admits all of the factual allegations made in the indictment.”); Adkins v. United States, 298 F.2d 842, 844 (8th Cir.) (“A plea of guilty is an admission of all the essential elements of an information or indictment so that no other proof on the part of the government is necessary for a judgment of conviction.”), cert. denied, 370 U.S. 954, 82 S.Ct. 1604, 8 L.Ed.2d 819 (1962). As is evident from the careful plea hearing conducted by the District Court, Apker’s plea of guilty to the § 924(c) charge, which requires that Apker used or carried a firearm “during and in relation to a drug trafficking crime,” was an admission that he had committed at least one drug trafficking crime. See Powell, 159 F.3d at 503 (holding petitioner’s guilty plea to a § 924(c) charge was an admission sufficient to support a conviction under §§ 841(a)(1) and 841(b)(l)(B)(iii)). In view of the foregoing discussion, we conclude there is no need for a remand on the question of Apker’s actual innocence of the charges on which, through his plea agreement, he escaped prosecution. The question remains, however, whether the charges that the Government agreed not to prosecute in exchange for Apker’s plea of guilty to the § 924(c) charge are “more serious” within the meaning of Bousley than the § 924(c) charge. See Bousley, 118 S.Ct. at 1612 (stating that petitioner’s showing of actual innocence must extend to “more serious” charges foregone in the course of plea bargaining). We think it advisable to allow that question to be addressed initially by the District Court. Accordingly, we remand the" }, { "docid": "23339889", "title": "", "text": "the exact day laid in the indictment. It is sufficient if it be proved beyond a reasonable doubt that the crime charged was committed at any time within two years before the date of the finding of the indictment.” If the faot was material, appellant admitted it by his plea of guilty and cannot question it now. The penalty imposed was within the discretion of the court. Even if we believe it unduly severe, instead of believing,- as we do, that the sentence is just, we would have no power to interfere. The trial judge had a right to -consider the policy of protection of the record of the carrier from fraudulent entry. He had indicated by raising the bond from $5,000.00 to $25,000.00, before sentence was pronounced, that he considered the crime a heinous one. Appellant was not led astray. Naturally, appellant does not desire to pay the penalty imposed. No pressure or persuasion by United States Attorney or other official is alleged. The District Judge protécted all the rights of appellant. No question of fact relating to the jurisdiction of the court over the crime charged or over appellant was presented. The denial of the motion for modification and correction of judgment and sentence is affirmed. United States v. Berg, 79 F.Supp. 1021. Knewel v. Egan, 268 U.S. 442, 446, 45 S.Ct. 522, 69 L.Ed. 1036. “Extra-record evidence referred to in brief will not be considered on appeal.” Morris v. District of Columbia, 75 U.S.App.D.C. 284, 124 F.2d 284. “ * * * plea * * * means guilty as charged in the indictment.” 9 Edmunds, Cyc.F.Pro., 2nd Ed., Sec. 4231, page 365. Ex parte Farlow, D.C. 272 F. 910, 911. “The plea of guilty waived all defenses other than that the indictment charged no offenses under the laws of the United States.” Rice v. United States, 5 Cir., 30 F.2d 681. “The pleas of guilty admitted all averments of fact and waived any defect in form of allegations.” Weir v. United States, 7 Cir., 92 F.2d 634, 635, 114 A.L.R. 481. “Waives all defects not jurisdictional.” Weir" }, { "docid": "21178570", "title": "", "text": "to every prosecution under the statute’ and of which the accused is entitled to be apprised by the indictment.” (320 F.2d at 191) Lauer expressly distinguishes Rivera on this ground. It is settled in this and other circuits that a plea of guilty to an indictment is an admission of all non-jurisdictional facts alleged in the charge, and that the judgment and sentence may not be collaterally attacked under 28 U.S.C. § 2255 for technical or non-jurisdictional defects. See Fiano v. United States, 9 Cir., 1961, 291 F.2d 113. We think that Robison’s point 2, that the indictment is duplicitous because it states that he did “sell or facilitate the sale” of heroin, if a defect at all, is non-jurisdictional. The same is true of his 5th point, that the indictment does not show the alleged offense to be in violation of any statute of the United States. It is true that the body of the indictment does not refer to the statute, but it is in the language of the statute, and this is enough. Furthermore, the indictment is entitled “Indictment, 21 U.S.C. 174 — Sale of Heroin.” Each of the three counts charges a separate sale, under that statute. This leaves only point 3, that the indictment is defective because it does not show how and by what means appellant knew the heroin involved was illegally imported. The difficulty with this contention is that the indictment does directly allege Robison’s knowledge. His plea of guilty admitted this knowledge. See Berg v. United States, 9 Cir., 1949, 176 F.2d 122; Forthoffer v. Swope, 9 Cir., 1939, 103 F.2d 707. Under these circumstances, Robison is in no position to attack the “presumption” embodied in the second paragraph of 21 U.S.C. § 174. This is a matter of proof. Robison having admitted knowledge by his plea, the presumption played no part in his conviction. Affirmed." }, { "docid": "23066690", "title": "", "text": "LINDLEY, District Judge. Appellants seek to reverse convictions upon pleas of guilty to various indictments charging violation of section 592, title 12, U.S.C.A., subsequent to August 23, 1935, by embezzling certain assets of three state banks, of which they were officers or directors, making false entries in the books and in reports of condition of the banks to the Federal Deposit Insurance Corporation, and conspiracy to violate the law. The indictments charged that each bank was a state “nonmember bank” as defined by law, the deposits of which were insured, in accord with the federal law, in the Federal Deposit Insurance Corporation, organized under the laws of the United States, a part of the capital stock of which the United States owned. Appellants’ demurrers were overruled. In turn, followed pleas of guilty, judgments of conviction, and the instant appeals. Appellants contend that section 592 does not apply to offenses committed by officers of state banks which are not members of the Federal Reserve System even though the deposits are insured in the Federal Deposit Insurance Corporation; that if it is applicable to officers and directors of such banks, it is unconstitutional; that if the statute is applicable and Congress has power to enact it, it does not become effective as to nonmember state banks unless the state of Indiana authorizes such banks to insure their deposits under the federal law, and that such consent has not been given. The pleas of guilty admitted all averments of fact and waived any defect in form of allegations. After such pleas the accused could not question any issue of fact or the propriety of its form of averment, People v. Brown, 140 Cal.App. 616, 36 P.(2d) 194; Miggins v. State, 170 Md. 454, 184 A. 911; Spoo v. State, 219 Wis. 285, 262 N.W. 696; Hudspeth v. State, 188 Ark. 323, 67 S.W.(2d) 191; and waives all defects not jurisdictional. Roberto v. U. S., 60 F.(2d) 774 (C.C.A.7); Kachnic v. U. S., 53 F.(2d) 312, 79 A.L.R. 1366 (C.C.A.9); Spirou v. U. S., 24 F.(2d) 796 (C.C.A.2); Rice v. U. S., 30 F.(2d)" }, { "docid": "23339891", "title": "", "text": "v. United States, supra. “ * * * which relieved the government of the necessity of further proof on that question of fact.” United States v. Luvisch, D.C., 17 F.2d 200, 202. \"* s= * same position * * * as though he had been found guilty by verdict of a jury.” Kachnie v. United States, 9 Cir., 53 F.2d 312, 315, 79 A.L.R. 1366. “ * * * the District Court could rightfully assume that the three counts presented separate offenses.” Rice v. United States, supra. Ex parte Thomas, D.C., 55 F.Supp. 30. All this is well established in this circuit. Forthoffer v. Swope, 9 Cir., 103 F.2d 707, 708. Weatherby v. United States, 10 Cir., 150 F.2d 465, 466. “Consequently, by the pleas, appellants admitted that the banks in question were ‘nonmember banks’ but that they were insured, participating in the benefits created by the Congress under the Federal Deposit Insurance Corporation Act [12 U.S.C.A. § 264]. The questions submitted, therefore, are wholly legal in character.” Weir v. United States, supra. Brady v. United States, 8 Cir., 24 F.2d 399. Cf. United States v. Fruit Growers Express Co., 279 U.S. 363, 49 S.Ct. 374, 73 L.Ed. 739; Krench v. United States, 6 Cir., 42 F.2d 354; United States v. Adams, 281 U.S. 202, 50 S.Ct. 269, 74 L.Ed. 807. See under an analogous statute, 12 U.S.C.A. 592 [now 18 U.S.C.A. § 1005]; Bower v. United States, 9 Cir., 296 F. 694, certiorari denied 266 U.S. 601, 45 S.Ct. 90, 69 L.Ed. 462; Morse v. United States, 2 Cir., 174 F. 539, 20 Ann.Cas. 938; (Cf. United States v. Adams, 281 U.S. 202, 50 S.Ct. 269, 74 L.Ed. 807, but see United States v. Darby, 289 U.S. 224, 53 S.Ct. 573, 77 L.Ed. 1137; Bozel v. United States, 6 Cir., 139 F.2d 153 ; Kennedy v. United States, 4 Cir., 275 F. 182. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Two sales of narcotics a day apart. “Tbe test is whether the individual acts are prohibited, or the course of action which they" }, { "docid": "14816303", "title": "", "text": "PER CURIAM. This is an appeal from an order denying the appellant’s pro se motion made pursuant to § 2255, 28 U.S.C., to vacate a judgment of conviction. On September 27, 1961, Spada was indicted under a three-count indictment charging him with violation on August 26 and 29, 1960, and September 19, 1960, of Sections 173 and 174 of Title 21, United States Code, in receiving, concealing, selling and facilitating the transportation, concealment and sale of specified quantities of illegally imported heroin. Upon Spada’s plea of guilty to the indictment, he was sentenced on December 26, 1961, on all three counts. On October 24, 1963, nearly a year and ten months later, Spada filed his § 2255 motion alleging that the indictment which was phrased in the words of the statute, was fatally defective in that it failed to set forth (1) the identity of the purchasers; (2) the crimes charged, and (3) the places where the crimes occurred. It is well settled that an indictment may not be collaterally attacked under § 2255 except for lack of jurisdiction or an infringement of defendant’s constitutional rights. Fiano v. United States, 9 Cir., 291 F.2d 113, cert. denied, 1961, 368 U.S. 943, 82 S.Ct. 380, 7 L.Ed.2d 340; Killebrew v. United States, 5 Cir., 275 F.2d 308, cert. denied, 1960, 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed. 2d 65. The test employed is whether the indictment contains sufficient information to enable the defendant to prepare his defense and to plead the judgment as a bar to further proceedings. Martin v. United States, 10 Cir. 1960, 285 F.2d 150, cert. denied, 1961, 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816. A plea of guilty to an indictment is an admission of guilt and a waiver of all non-jurisdictional defects. Lockhart v. United States, 8 Cir. 1961, 293 F.2d 314, cert. denied, 1962, 368 U.S. 1003, 82 S.Ct. 636, 7 L.Ed.2d 541; United States v. Parker, 6 Cir. 1961, 292 F.2d 2. Where, as here, the statute sets forth all the necessary elements to constitute the crime, it is sufficient if" }, { "docid": "23339886", "title": "", "text": "and have later brought these up on appeal. No sentence on plea of guilty could stand if this were not the rule. As it is, appellant has admitted he did the acts as alleged in each count of the indictment, with the required intent. A plea of guilty means guilty as charged in the indictment. If the indictment states no basis for jurisdiction, such a plea will not create a sufficient charge. However, by a plea of guilty, all averments of fact are admitted ’ all defects not jurisdictional are cured, all defenses ¡are waived and the prosecution is relieved from the duty of proving any facts. The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts. Where there are several counts and there is a plea of guilty to each respectively, the sentencing court must assume that each count states a separate crime. After judgment and sentence upon such a voluntary admission by plea of guilty, the matter is concluded and no proof will be received on habeas corpus or otherwise to assail collaterally the judgment, unless absence of jurisdiction makes it void. Thus, by his pleas of guilty to the several counts that his intent and purpose was to injure those whom the statute sought to protect, the valid charges of the indictments are established. If proof of any injury to a shipper or traveler would have been required on trial to establish guilt, that proof was furnished by his admission. Appellant thereby furnished conclusive evidence that each of the entries was a separate crime. No proof can be submitted now that appellant was sentenced in the California courts for grand larceny of the same sum of money which is connected with the several charges of this indictment. Double jeopardy is a personal defense and is waived by plea of guilty. None of the defendant’s positions is well founded as matter of law. The fact that the statute may have been designed to protect the traveler and shipper does not prevent the" }, { "docid": "23342690", "title": "", "text": "United States v. Clarke, 20 Wall. 92, 87 U.S. 92, 104, 22 L.Ed. 320, the Supreme Court said: “It may be conceded that an indictment or a criminal information which charges the person accused, in the disjunctive, with being guilty of one or of another of several offenses, would be destitute of the necessary certainty, and would be wholly insufficient. It would be so for two reasons. It would not give the accused definite notice of the offense charged, and thus enable him to defend himself, and neither a conviction nor an acquittal could be pleaded in bar to a subsequent prosecution for one of the several offenses.” In Ackley v. United States, 8 Cir., 200 F. 217, 221, the Eighth Circuit Court stated the law thus: “ * * * if the statute denounces several things as a crime, the different things thus enumerated in the statute being connected by the disjunctive ‘or,’ the pleader must connect them by the conjunctive ‘and’ before evidence can be admitted as to more than the one act. To recite that the defendant did the one thing or another makes the indictment bad for uncertainty.” See also Troutman v. United States, 10 Cir., 100 F.2d 628, 631; Wolpa v. United States, 8 Cir., 86 F.2d 35, 38; O’Neill v. United States, 8 Cir., 19 F.2d 322; and Simpson v. United States, 9 Cir., 229 F. 940. When several acts specified in a statute are committed by the same person, they may be coupled in one count as together constituting one offense although a disjunctive word is used in the statute, and proof of any one of the acts joined in the conjunctive is sufficient to support a verdict of guilty. So where as here, the indictment charged that the defendant did unlawfully remove, deposit, and conceal, it was enough to prove any one. Crain v. United States, 162 U.S. 625, 634-636, 16 S.Ct. 952, 40 L.Ed. 1097. While we agree with appellant that “remove” in the statute means more than “transport,” and has reference to removing the liquor from the place where made" } ]

[ { "docid": "22278471", "title": "", "text": "which she will be the sole defendant. The question remains as to whether the trial court properly refused to sever Mrs. Chagra’s trial from that of the Harrelsons on the offense charged in Count 3 of the indictment, conspiracy to obstruct justice. We are convinced that it was not error to try all of these defendants together on this charge. It is the general rule that persons who are indicted together should be tried together. United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979), citing United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977) . Mrs. Chagra does not dispute the propriety under Rule 8(b) of her joinder with the Harrelsons in the indictment. “Therefore, disposition of the various motions to sever under Fed.R.Crim.P. 14 was within the discretion of the trial court.” Id. at 1001-02. “Denial of a severance will not result in reversal unless the defendant can show that he or she was ‘unable to obtain a fair trial without a severance’ and can ‘demonstrate compelling prejudice against which the trial court [was] unable to afford protection.’\" United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978), quoting United States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978) . Mrs. Chagra contends that she suffered compelling prejudice by standing trial with Charles Harrelson because evidence relating only to him, i.e., his prior criminal record, his reputation as a murderer for hire, and, in general, his extraordinarily unsavory character, “spilled over” onto her. Our Circuit’s view of such “spill over” or “cumulation” arguments is set forth in a line of cases beginning with Morrow: “The pernicious effect of cumulation ... is best avoided by precise instructions to the jury on the admissibility and proper uses of the evidence introduced by the Government.” Morrow, 537 F.2d at 136. Accord, United States v. Loalza-Vasquez, 735 F.2d 153,159 (5th Cir.1984) (limiting instructions cured prejudicial" } ]

[ { "docid": "22939031", "title": "", "text": "with that of at least one of his co-defendants. Denial of a motion for severance is reviewable only for an abuse of discretion. Zafiro v. United States, — U.S.-,-, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). “Reversal is warranted only when the [defendant] can demonstrate compelling prejudice against which the trial court was unable to afford protection.” Arzola-Amaya, 867 F.2d at 1516. “The rule, rather than the exception, is that persons indicted together should be tried together, especially in conspiracy cases.” United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 266, 126 L.Ed.2d 218 (1993). Accordingly, a quantitative disparity in the evidence “is clearly insufficient in itself to justify severance.” United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). Moreover, “the mere presence of a spillover effect does not. ordinarily warrant severance.” United States v. Sparks, 2 F.3d 574, 583 (5th Cir.1993). Finally, severance' is not required merely because co-defendants present mutually antagonistic defenses: “Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district court.” Zafiro, — U.S. at-, 113 S.Ct. at 938-39. In this case, the government offered sufficient evidence demonstrating that Sanchez and Hodgkiss were guilty of the crimes charged. See parts II.B.4 and .5 supra. Moreover, even if some risk of prejudice existed, the district court properly instructed the jury to limit evidence to the appropriate defendant, and “‘juries are presumed to follow their instructions.’ ” Zafiro, — U.S. at-, 113 S.Ct. at 939 (quoting Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987)). Sanchez and Hodgkiss provide no sound reason for departing from this principle.' Because Sanchez and Hodgkiss did not suffer compelling prejudice against which the district court was unable to afford protection, the district court did not abuse its discretion in" }, { "docid": "565793", "title": "", "text": "724 F.2d 1116, 1122 (5th Cir.1984) (“The crucial factor in finding a single conspiracy centers on whether the alleged co-conspirators all took part in a common plan or scheme.”). If the loans were part of one conspiracy, then there is no cause for the application of the spill-over doctrine. Even if the loans were not related, however, Massey would still not be entitled to a reversal because the district court properly instructed the jury that they should consid er separately the evidence offered against each defendant. Such appropriate limiting instructions are sufficient to prevent the threat of prejudice resulting from unsevered trials. See United States v. Lamp, 779 F.2d 1088 (5th Cir.) (affirming conviction obtained in an unsevered trial even though the evidence was complex and interrelated), cert. denied, — U.S.-, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986); Harrelson, supra, 754 F.2d at 1174; United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981). VI. Appellants assert that the trial court committed reversible error in admitting a partially-disclosed typewritten document into evidence. The admissibility of evidence is properly within the discretion of the district court, and evidentiary rulings will be reversed only upon a finding that that discretion was abused. Micholas v. Homelite Corp., 780 F.2d 1150, 1155 (5th Cir.1986). The document at issue is a loan application made by appellant Massey to UCMM. Appellant Wages claims that he “committed himself” on cross-examination to a claim that the document wasn’t mailed because it was handwritten, and the government effectively “tricked” him. Wages does not claim, however, that the government’s behavior prevented him from making any other argument relating to the document or from attacking the government’s proof in other ways. Wages’ only claim is that he was substantially prejudiced by being denied the right to make an argument that the government had overlooked proof that the government, in fact, possessed. We reject such an argument. Moreover, the fact that the government did not inform each and every defense attorney about" }, { "docid": "288870", "title": "", "text": "in every conspiracy case “a not guilty plea renders the defendant’s interest a material issue.” Id. at 383. Therefore, evidence of extrinsic offenses is admissible unless the defendant “affirmatively take[s] the issue of intent out of the case.” Id. (citations omitted). Furthermore, because of the unique nature of the conspiracy offense, extrinsic offense evidence may be admissible in some instances even when the defendant concedes the issue of intent, removing it as an issue in the case. Mergist, 738 F.2d at 650; Roberts, 619 F.2d at 383. Fortna did not concede the- issue of intent in this case. We conclude that the district court did not abuse its discretion in admitting Schwarz’s testimony. Although prejudicial to Fortna, the evidence was not likely to have been misused by the jury under the facts of this case. There was no more, indeed there was less, reason for the jury to credit Schwarz’s testimony about the prior drug smuggling than to credit his well-corroborated testimony about the instant offenses and Fortna’s involvement therein. In addition, the district court instructed the jury that the evidence could be used only for the limited purpose of proving intent. See note 12, infra. Moreover, Schwarz’s description of prior drug smuggling operations that involved similar plans and some of the same participants was highly probative to the issue of intent in this case. It was also relevant to the related issue of knowledge. We therefore reject Fortna’s claim. Severance Appellants Sharer and Reo contend that the district court abused its discretion in denying their motions for severance (and Sharer’s motion for mistrial) because of the prejudicial effect of the evidence of prior drug involvement offered against Hamage and Fortna. The district court’s decision should be reversed only if appellants were “unable to obtain a fair trial without a severance” and can “demonstrate compelling prejudice against which the trial court [was] unable to afford protection.” United States v. Harrelson, 754 F.2d 1153,1174 (5th Cir.) (citations omitted) (no severance warranted despite evidence of prior criminal dealings of co-defendant), cert. denied, — U.S. —, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985);" }, { "docid": "565791", "title": "", "text": "and the government’s proof that the defendant interrupted the movement of steel out of Pennsylvania. In Stirone, the indictment failed to give notice of the relevant events constituting the crime. Here, the indictment provided full specificity regarding the exact events giving rise to the charge of conspiracy. This rigorous particularity not only informed appellants about exactly what actions they had to answer for, but it also provided adequate protection against the risk of another prosecution for the same conspiracy. Should appellants be indicted again, the government would not be able to rely on these actions unless it can show that the subsequent indictment charges a different offense than does the indictment in the case before us. See United States v. Nichols, 741 F.2d 767, 771 (5th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985). We therefore reject appellants’ claim that a fatal variance existed between the indictment and the government’s proof at trial. V. Appellant Massey urges that the trial court erred in denying his motion to sever his trial from that of his co-conspirator Wages. The decision as to whether to sever the trials of persons who are indicted together is within the discretion of the district court, and denial of a motion to sever will not result in reversal unless the defendant can demonstrate compelling prejudice against which the trial court was unable to afford protection, and that he was unable to obtain a fair trial. United States v. Harrelson, supra, 754 F.2d at 1174. Massey complains of the “spillover” effect of introducing evidence incriminating Wages that did not incriminate Massey. Specifically, Massey refers to overt acts committed in regard to the Clark loan, with which, he contends, he had no connection. Baker, however, testified that Massey was involved in both loans. Baker claimed that Massey and Wages discussed with him the collateral for the Clark loan. The jury had the right to believe this testimony of Baker. With this evidence the jury properly could find that there was one conspiracy and that Massey was involved in it. See United States v. Winship," }, { "docid": "288871", "title": "", "text": "instructed the jury that the evidence could be used only for the limited purpose of proving intent. See note 12, infra. Moreover, Schwarz’s description of prior drug smuggling operations that involved similar plans and some of the same participants was highly probative to the issue of intent in this case. It was also relevant to the related issue of knowledge. We therefore reject Fortna’s claim. Severance Appellants Sharer and Reo contend that the district court abused its discretion in denying their motions for severance (and Sharer’s motion for mistrial) because of the prejudicial effect of the evidence of prior drug involvement offered against Hamage and Fortna. The district court’s decision should be reversed only if appellants were “unable to obtain a fair trial without a severance” and can “demonstrate compelling prejudice against which the trial court [was] unable to afford protection.” United States v. Harrelson, 754 F.2d 1153,1174 (5th Cir.) (citations omitted) (no severance warranted despite evidence of prior criminal dealings of co-defendant), cert. denied, — U.S. —, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985); accord United States v. Lamp, 779 F.2d 1088, 1093 (5th Cir.) (similar ruling in complex conspiracy case), cert. denied, — U.S.—, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). Sharer and Reo must demonstrate a quantitative and qualitative difference in the evidence offered against them extreme enough to necessitate severance, and any prejudice must be balanced against the public’s interest in efficient judicial administration. Harrelson, 754 F.2d at 1175-76. The “spillover” effect that those appellants claim resulted from the prior crimes evidence against their co-defendants usually is best avoided “by precise instructions to the jury on the admissibility and proper uses of the evidence introduced by the government.” Id. at 1175 (quoting United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977)). During the testimony, the district court cautioned the jurors that certain evidence of prior drug dealings should be considered only against Fortna and Harnage. Appellant Sharer points to one instance, however, in which the district court admitted evidence of prior drug transactions" }, { "docid": "23407131", "title": "", "text": "than his assessment of the public interest, it must grant the motion to dismiss.” United States v. Hamm, 659 F.2d 624, 630 (5th Cir.1981) (en banc). No evidence indicates that the district court abused its discretion. IV. Joinder and Severance Many of the appellants argue that they deserved separate trials. We first emphasize the general rule that persons who are indicted together should be tried together. United States v. Harrelson, 754 F.2d 1153, 1174 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). The appellants’ arguments assert both prejudicial joinder under Fed.R. Crim.P. 14 and misjoinder under Fed.R. Crim.P. 8. We note the conceptual difference between the two rules. See United States v. Manzella, 782 F.2d 533, 539-40 (5th Cir.), cert. denied sub nom Jimenez v. United States, — U.S. -, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986). We address each of the appellants’ arguments separately under these two rules. A. Under Federal Rule of Criminal Procedure H Appellants Drake and Vance Williams, Grossman, and Watson contend that the district court erred in denying their motions for severance. The Federal Rules of Criminal Procedure give the district court discretion to order a severance “[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants____” Fed.R. Crim.P. 14. Denials of Rule 14 motions are reviewable only for abuse of discretion. Manzella, 782 F.2d at 540. We can reverse only if the appellant can demonstrate compelling prejudice against which the trial court was unable to afford protection. Harrelson, 754 F.2d at 1174. 1. Need for Testimony In another attempt to make available Jan Grossman’s testimony, Drake Williams asked the district court to sever the two cases. The court refused. To be entitled to a severance, Drake must show (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify. United States v. Butler, 611 F.2d 1066, 1071 (5th Cir.), cert. denied sub nom Fazio v. United States, 449 U.S. 830, 101" }, { "docid": "565792", "title": "", "text": "from that of his co-conspirator Wages. The decision as to whether to sever the trials of persons who are indicted together is within the discretion of the district court, and denial of a motion to sever will not result in reversal unless the defendant can demonstrate compelling prejudice against which the trial court was unable to afford protection, and that he was unable to obtain a fair trial. United States v. Harrelson, supra, 754 F.2d at 1174. Massey complains of the “spillover” effect of introducing evidence incriminating Wages that did not incriminate Massey. Specifically, Massey refers to overt acts committed in regard to the Clark loan, with which, he contends, he had no connection. Baker, however, testified that Massey was involved in both loans. Baker claimed that Massey and Wages discussed with him the collateral for the Clark loan. The jury had the right to believe this testimony of Baker. With this evidence the jury properly could find that there was one conspiracy and that Massey was involved in it. See United States v. Winship, 724 F.2d 1116, 1122 (5th Cir.1984) (“The crucial factor in finding a single conspiracy centers on whether the alleged co-conspirators all took part in a common plan or scheme.”). If the loans were part of one conspiracy, then there is no cause for the application of the spill-over doctrine. Even if the loans were not related, however, Massey would still not be entitled to a reversal because the district court properly instructed the jury that they should consid er separately the evidence offered against each defendant. Such appropriate limiting instructions are sufficient to prevent the threat of prejudice resulting from unsevered trials. See United States v. Lamp, 779 F.2d 1088 (5th Cir.) (affirming conviction obtained in an unsevered trial even though the evidence was complex and interrelated), cert. denied, — U.S.-, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986); Harrelson, supra, 754 F.2d at 1174; United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981). VI." }, { "docid": "22588107", "title": "", "text": "(holding that determination of the risk of prejudice from joint trials, and of the necessary remedy to avoid such prejudice, are entrusted to the sound discretion of the district court); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989); United States v. Manzella, 782 F.2d 533, 540 (5th Cir.), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986). “Reversal is warranted only when the appellant can demonstrate compelling prejudice against which the trial court was unable to afford protection.” Arzola-Amaya, 867 F.2d at 1516; United States v. Harrelson, 754 F.2d 1153, 1174 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). The rule, rather than the exception, is that persons indicted together should be tried together, especially in conspiracy cases. See Arzola-Amaya, 867 F.2d at 1516; United States v. McGuire, 608 F.2d 1028, 1031 (5th Cir.1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1060, 62 L.Ed.2d 782 (1980). Nunn claims he was entitled to a severance because his involvement in the drug trafficking as a “mere mule” was extremely limited. Nunn’s absence from particular episodes in the conspiracy does not mandate severance. See United States v. Rocha, 916 F.2d 219, 228 (5th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). Nunn asserts that the amount of evidence offered against him was far less than the evidence offered against his co-defendants, but we have held that a quantitative disparity in the evidence “is clearly insufficient in itself to justify severance.” Harrelson, 754 F.2d at 1175. Furthermore, Nunn asserts that the reputations of the co-defendants and evidence of their past crimes created a prejudicial spillover effect. We have also held that the mere presence of a spillover effect does not ordinarily warrant severance. See Rocha, 916 F.2d at 228; Harrelson, 754 F.2d at 1178. Moreover, in the case at bar the district court properly instructed the jury to limit evidence to the appropriate defendant. “[Jjuries are presumed to follow their instructions.” Zafiro, — U.S. at -, 113" }, { "docid": "288872", "title": "", "text": "accord United States v. Lamp, 779 F.2d 1088, 1093 (5th Cir.) (similar ruling in complex conspiracy case), cert. denied, — U.S.—, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). Sharer and Reo must demonstrate a quantitative and qualitative difference in the evidence offered against them extreme enough to necessitate severance, and any prejudice must be balanced against the public’s interest in efficient judicial administration. Harrelson, 754 F.2d at 1175-76. The “spillover” effect that those appellants claim resulted from the prior crimes evidence against their co-defendants usually is best avoided “by precise instructions to the jury on the admissibility and proper uses of the evidence introduced by the government.” Id. at 1175 (quoting United States v. Morrow, 537 F.2d 120, 136 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977)). During the testimony, the district court cautioned the jurors that certain evidence of prior drug dealings should be considered only against Fortna and Harnage. Appellant Sharer points to one instance, however, in which the district court admitted evidence of prior drug transactions against all defendants subject to further connection. The court permitted the introduction of cocaine that Whitman had obtained from Hamage before January 1985. Although Reo and Sharer were never implicated in any drug involvement that occurred before the conspiracy, any prejudice to them resulting from admission of this evidence was minimal, in light of their ultimately evident lack of connection to this challenged event and all the other testimony against them, and was cured by the court’s closing charge to the jury. See Harrelson, 754 F.2d at 1175; United States v. Loalza-Vasquez, 735 F.2d 153, 159 (5th Cir.1984). The district court in its final charge carefully explained the proper use of the prior crimes evidence. Finally, Sharer and Reo suggest that a severance is required when a defendant is alleged to be only peripherally involved in a conspiracy. The quantum of proof offered against a defendant should be considered in ruling on a motion for severance. Harrelson, 754 F.2d at 1175-76. Nevertheless, a defendant is not necessarily entitled to a severance when his alleged involvement" }, { "docid": "22939030", "title": "", "text": "986 F.2d 905, 911 (5th Cir.) (acquittal on the predicate count does not preclude a conviction under § 924(c) if a reasonable jury could have found the defendant guilty of the predicate act), cert. denied, — U.S. -, 114 S.Ct. 145, 126 L.Ed.2d 107 (1993). Thus, the jury’s finding ‘that Hodgkiss engaged in a conspiracy to distribute illegal drugs qualifies as a drag- trafficking offense under § 924(c), and is more than sufficient to support Hodgkiss’s conviction. Accordingly, the district court did not err in refusing to enter a judgment of acquittal. C Sanchez and Hodgkiss contend that the district court erred in denying their motions for severance under Fed.R.Crim.P. 14. Sanchez contends that he was entitled to a severance because he had only a minimal involvement in the conspiracy, the jury was “simply overwhelmed” by the volume of evidence, and evidence admissible against other defendants was inadmissible as to him. Hodgkiss argues that he was entitled to severance because evidence was admissible against other defendants but inadmissible against him and his defense strategy conflicted with that of at least one of his co-defendants. Denial of a motion for severance is reviewable only for an abuse of discretion. Zafiro v. United States, — U.S.-,-, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). “Reversal is warranted only when the [defendant] can demonstrate compelling prejudice against which the trial court was unable to afford protection.” Arzola-Amaya, 867 F.2d at 1516. “The rule, rather than the exception, is that persons indicted together should be tried together, especially in conspiracy cases.” United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 266, 126 L.Ed.2d 218 (1993). Accordingly, a quantitative disparity in the evidence “is clearly insufficient in itself to justify severance.” United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). Moreover, “the mere presence of a spillover effect does not. ordinarily warrant" }, { "docid": "13152771", "title": "", "text": "The general rule is that defendants are to be tried together if their indictments arose out of a common set of circumstances, even if there is a disparity in the quantum of evidence. United States v. Harrelson, 754 F.2d 1153, 1174 (5th Cir.1985); United States v. Beskowitz, 662 F.2d 1127, 1135 n. 8 (5th Cir.1981); United States v. Partin, 552 F.2d 621, 641 (5th Cir.1977). Denial of a severance will not be reversed unless the defendant can prove he was deprived of a fair trial without severance and can “demonstrate compelling prejudice against which the trial court [was] unable to afford protection.” Harrelson, 754 F.2d at 1174, quoting, United States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). Appropriate cautionary instructions can decrease the possibility that the jury will improperly transfer proof of guilt from one defendant to another. The court twice so instructed this jury — first, immediately following the introduction of the prior conviction of Barry, and second, in the jury charge. In light of these cautionary instructions, we are not persuaded that the court erred in refusing to sever. Brad Hogan has not demonstrated that the prior conviction or quantum of proof against Barry, or their status as brothers justifies severance. Compare Harrelson, 754 F.2d at 1174-78. The court may, of course, reconsider this issue and reach a different result if other more compelling justification for granting a severance is presented. We hold only that the court’s ruling in refusing to grant a severance was proper. V Because of the government’s improper use of Carpenter’s testimony for the primary purpose of subsequently introducing otherwise inadmissible hearsay testimony, the convictions of Barry Kendall Hogan and Mark Bradford (Brad) Hogan are REVERSED." }, { "docid": "22467427", "title": "", "text": "the arsenal of weapons in his home. Rocha, Garcia, Hino-josa and Gallegos argue that there was such a quantitative and qualitative disparity in the evidence among the co-defendants that each of them suffered compelling prejudice. See United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.1985). Gallegos also argues that because such a small portion of the evidence at trial was related to him, the jury must have found him guilty by association. Despite their contentions, however, none of the defendants have shown any evidence of specific prejudice. This Court has stated that when one conspiracy exists, severance is not required, even where the quantum and nature of the proof in each case is different, so long as the trial court repeatedly gives cautionary instructions. United States v. Lamp, 779 F.2d 1088, 1093-94 (5th Cir.), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). It is clear that a defendant’s absence from a particular episode in the conspiracy does not mandate severance. United States v. DeVarona, 872 F.2d 114, 120 (5th Cir.1989). Similarly, evidence of the reputation or past crimes of one co-defendant, although clearly inadmissible against the other co-defendants, does not ordinarily justify severance. Harrel-son, 754 F.2d at 1178. Hence, since each defendant here was convicted of essentially one complex conspiracy, severance is not required merely because the Government introduced evidence admissible only against individual co-defendants. • This Court in United States v. Merida, 765 F.2d 1205 (5th Cir.1985), rejected arguments similar to those made by defendants here. The defendants in Éíerida attempted to show prejudice by arguing that: (1) only a relatively small part of the evidence presented during the eight-week trial related to them directly, (2) the evidence relevant only to the other defendants created a background of egregious conduct against which the jury must have reacted with revulsion, and (3) the jury necessarily found them guilty by association because of the insubstantiality of the evidence against them. 765 F.2d at 1219. The Merida Court noted that severance had been denied in other cases in which the trials lasted longer and involved more defendants." }, { "docid": "22935037", "title": "", "text": "it does seem to be enough evidence to be reasonably relied upon by the police in executing a search warrant. Thus, we affirm the district court’s denial of Ray Fields’ motion to suppress. VII. MCDONALD’S MOTION FOR SEVERANCE McDonald contends that he was entitled to severance under Federal Rule of Criminal Procedure 14, which allows severance when a defendant is prejudiced by joinder of offenses or defendants. We review the district court’s denial of his motion for severance due to prejudicial joinder for abuse of discretion. McDonald contends that he was entitled to severance because there was a qualitative disparity between the evidence against him and the evidence against the other defendants. Specifically, the evidence showed that Ray Fields and Ross had been major players in the drug business for years, while McDonald was only a runner who recently joined the Fields organization. He also argues that the evidence against Ray Fields and Ross was so pervasive that it must have prejudiced him, notwithstanding the instructions given by the district court. In conspiracy cases, the general rule is that persons indicted together should be tried together. A defendant can only obtain a reversal for failure to sever if he can demonstrate “compelling prejudice against which the trial court was unable to afford protection.” McDonald has not demonstrated such compelling prejudice. This Court has held that neither a disparity in the amount of evidence against each defendant nor a supposition that the evidence against other defendants “spilled over” and prejudiced the defendant constitute compelling prejudice. . The fact that McDonald was only a minimal participant in the Fields organization likewise does not mandate reversal. Further, the district court seems to have remedied any prejudicial effect by instructing the jury to limit its consideration of the evidence to the appropriate defendant. VIII. SENTENCING ISSUES McDonald, Richardson and Ross argue that the district court did not properly apply the Sentencing Guidelines. In reviewing sentencings, we review findings of fact made by the district court for clear error. We review the district court’s application of the Sentencing Guidelines de novo. A. MCDONALD’S CLAIMS McDonald" }, { "docid": "23407132", "title": "", "text": "court erred in denying their motions for severance. The Federal Rules of Criminal Procedure give the district court discretion to order a severance “[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants____” Fed.R. Crim.P. 14. Denials of Rule 14 motions are reviewable only for abuse of discretion. Manzella, 782 F.2d at 540. We can reverse only if the appellant can demonstrate compelling prejudice against which the trial court was unable to afford protection. Harrelson, 754 F.2d at 1174. 1. Need for Testimony In another attempt to make available Jan Grossman’s testimony, Drake Williams asked the district court to sever the two cases. The court refused. To be entitled to a severance, Drake must show (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify. United States v. Butler, 611 F.2d 1066, 1071 (5th Cir.), cert. denied sub nom Fazio v. United States, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980). Drake’s motion for severance, however, contained only conclusory statements as to the exculpatory nature of Grossman’s testimony as well as mere assertions that Grossman would indeed testify. Record, vol. 11 at 1724-27. In addition, the motion was supported by Drake’s counsel’s affidavit, not an affidavit by Grossman. Id. at 2728-29. In this instance, the trial judge did not abuse his discretion to deny the motion. See United States v. DeSimone, 660 F.2d 532, 539-40 (5th Cir.1981), cert. denied sub nom Butler v. United States, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). 2. Evidence Against Other Defendants Drake and Vance Williams are twin brothers. Three witnesses at trial testified that they sometimes found it difficult to distinguish between the two. The Williamses now argue the confusion of identities required the district judge to sever their trials. Relief from this type of prejudicial joinder becomes necessary only when a jury could not be expected to compartmentalize the evidence as it relates to separate defendants. United States v. Lemm," }, { "docid": "23359115", "title": "", "text": "that the government disclose such arrangements, the opportunity for defense counsel to engage in rigorous cross-examination, and the instruction of the jury on the suspect nature of compensated testimony. Because of these safeguards and because “the compensated wit ness and the witness promised a reduced sentence are indistinguishable in principle and should be dealt with in the same way,” we hold that 18 U.S.C. § 201(c)(2) is not violated when prosecutors compensate informants for their cooperation. Motion to Sever. Drake maintains that the trial court erred by denying his motion to sever. He claims that the “spillover effect” of the evidence presented against Barnett confused the jury to such a degree that severance was required in order to avoid undue prejudice to his defense. We review the denial of a motion to sever for abuse of discretion. As a general rule, defendants who are indicted together are tried together. The decision whether to sever the trials of persons indicted together is within the discretion of the trial court, and the denial of a severance will not furnish grounds for reversal unless the defendant can demonstrate specific compelling prejudice against which the district court was unable to afford protection. A joint trial is especially appropriate when the defendants are alleged to have been participants in the same conspiracy. Severance is necessary only when “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 determination of guilt or innocence.” We find that the district court acted within its discretion in denying Drake’s motion to sever. Drake was not prejudiced in the presentation of any defenses as a result of being tried jointly with Barnett. Nor was severance required so that the testimony of a cocon-spirator could be compelled without violating the coconspirator’s fifth amendment rights. In fact, Drake’s only alleged co-conspirator, Barnett, testified at trial, was cross examined by Drake’s attorney, and generally gave information that supported Drake’s defense. Stripped to its essentials, Drake simply argues that the quantum of evidence against Barnett and" }, { "docid": "22447792", "title": "", "text": "indictment. Because the government could not show that Milan participated in all of the distinct conspiracies, Milan argues that this variance prejudiced him by exposing the jury to evidence of other conspiracies with which he was not connected. To prevail on this claim, Milan must show (1) an actual variance between the allegations in the indictment and the proof at trial and (2) prejudice flowing from the variance that affected his substantial rights. See United States v. Morns, 46 F.3d 410, 414 (5th Cir.1995). We conclude that, even assuming Milan can show a variance, he has not shown prejudice sufficient to warrant reversal. As a general rule, “ ‘where the indictment alleges a single conspiracy and the evidence establishes each defendant’s participation in at least one conspiracy[,] a defendant’s substantial rights are affected only if the defendant can establish reversible error under general principles of joinder and severance.’ ” United States v. Pena-Rodriguez, 110 F.3d 1120, 1128 (5th Cir.1997) (citations omitted, alteration in original). To show that the district court abused its discretion by trying him with the other defendants, Milan must demonstrate “ ‘specific and compelling prejudice that resulted in an unfair trial and such prejudice must be of a type against which the trial court was unable to afford protection.’ ” Pena-Rodriguez, 110 F.3d at 1128 (citation omitted); see also Fed.R.Crim.P. 14. In this case, Milan relies on a general allegation that the evidence concerning his co-defendants’ activities — particularly those involving the sale of cocaine — had a prejudicial “spillover effect” on his case because he did not participate in those activities. But the conspiracy alleged here was not particularly complex, and the district court instructed the jury to consider the charges against each defendant separately. Under these circumstances, it seems clear that' the jury would have no difficulty making an individualized assessment of the evidence against each defendant. Because Milan has failed to “ ‘isolate events occurring in the course of a joint trial’ ” that may have impaired his defense and to “ ‘demonstrate that such events caused substantial prejudice,’ ” we conclude that reversal" }, { "docid": "13152770", "title": "", "text": "hear extrinsic testimony to determine whether the notes are verbatim statements. See Judon, 567 F.2d at 1291, 1293. The district court will be in a better position to evaluate the nature of these notes. By remanding, we neither make nor imply the slightest intimation as to their character, or the need for extrinsic proof. The district court’s determination of this issue is a fact question that will not be overturned unless it is clearly erroneous. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. at 1356, 1360, 10 L.Ed.2d 501 (1963). B Brad Hogan requested a severance in mid-trial after the prosecution introduced testimony of a prior conviction against Barry for possessing 400 pounds of marijuana. He contended that the jury would unfairly allow such evidence to taint his credibility. Brad notes that far more evidence was presented against Barry than against him, and therefore this prior conviction would have a more substantial prejudicial impact on him. He also contends that the proba bility of transference of guilt was heightened because they were brothers. The general rule is that defendants are to be tried together if their indictments arose out of a common set of circumstances, even if there is a disparity in the quantum of evidence. United States v. Harrelson, 754 F.2d 1153, 1174 (5th Cir.1985); United States v. Beskowitz, 662 F.2d 1127, 1135 n. 8 (5th Cir.1981); United States v. Partin, 552 F.2d 621, 641 (5th Cir.1977). Denial of a severance will not be reversed unless the defendant can prove he was deprived of a fair trial without severance and can “demonstrate compelling prejudice against which the trial court [was] unable to afford protection.” Harrelson, 754 F.2d at 1174, quoting, United States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). Appropriate cautionary instructions can decrease the possibility that the jury will improperly transfer proof of guilt from one defendant to another. The court twice so instructed this jury — first, immediately following the introduction of the prior conviction of Barry, and second, in the jury" }, { "docid": "11784945", "title": "", "text": "Appellants’ complain that the trial court erred when it denied their motions for a severance. We disagree. The basis for this contention is not clear. It is apparently pegged on the Anchondo connection. The general rule is that persons who are indicted together should be tried together. United States v. Harrelson, 754 F.2d 1153, 1174 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). Denial of a Rule 14 motion for a severance is reviewable only for abuse of discretion. United States v. Manzella, 782 F.2d 533, 540 (5th Cir.1986). Reversal is warranted only when the appellant can demonstrate compelling prejudice against which the trial court was unable to afford protection. United States v. Manzella, 782 F.2d at 540, United States v. Harrelson, 754 F.2d at 1174. The evidence here was not so complicated as to prevent the jury from separating the evidence and properly applying it only to those against whom it was offered. There was no unfair prejudice which would compel us to disturb the jury’s verdict. The trial court, moreover, explicitly instructed the jury to consider each offense separately and each defendant individually. This instruction sufficiently enabled the jury to “compartmentalize” such evidence and prevent any “spillover” from tainting another appellant’s case. Certain appellants were convicted of some counts while others were found not guilty, demonstrating that the jury properly followed the judge’s instructions. These appellants were not prejudiced by their joinder with Arzola-Amaya. ESTRADA-HERNANDEZ Estrada-Hernandez suggests four additional grounds which he argues require setting aside his conviction: (1) his trial did not begin within the time constraints of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (2)the trial court did not utilize the “mere association” charge requested; (3) that certain evidence introduced was the product of an alleged “illegal arrest and seizure” and (4) the concurrent sentences should not be permitted to stand. We address each contention briefly. (1) Relevant dates in the instant case include July 29, 1987 when Estrada-Hernandez entered a not guilty plea, and November 30, 1987, the trial date. Estrada-Hernandez’ filing of his “Motion for" }, { "docid": "11265122", "title": "", "text": "Simmons’ claim of error in the trial court’s refusal to conduct separate trials. As a general rule, persons indicted together should be tried together, particularly when the offense is conspiracy. In ruling on a motion to sever, a trial court must balance potential prejudice to the defendant against the “public interest in joint trials where the’ case against each defendant arises from the same general transaction.” To demonstrate reversible error, even where initial joinder was improper, a defendant must show “clear, specific and compelling prejudice that resulted in an unfair trial.” This prejudice must be of a type “against which the trial court was unable to afford protection.” We review the denial of a motion to sever for abuse of discretion. Simmons essentially argues that forcing him into a second trial with Kuhn allowed the government to try again his complicity in Count Two, the conspiracy of ’which he was acquitted in the first trial. • The argument continues that at the very least, the testimony of Akin, Cuevas, and Crafton tied Simmons to Kuhn’s Count Two activities, a “spillover” of evidence that prejudiced the jury’s consideration of Count One. Relatedly, when confronted with the testimony of government witnesses as to the Lubbock conspiracy, trial counsel was “faced with a Hobson’s choice,” so ■ as not to place emphasis on an aspect of the indictment for which Simmons was no longer at trial. While we do not find this to be an easy question, we are ultimately persuaded that refusing to sever was not reversible error. In our decision we are keenly aware that the claimed “efficiency” of a joint trial can be a surrogate for the reality that a joint trial of multiple defendants is simply to the advantage of the government. It is the potential presence of prosecutorial advantage distinct from the expense of duplicating efforts that draws our attention. Hence, when a joint trial puts evidence before the jury that would not be admitted against a defendant tried separately, we closely examine that evidence, its “spillover” potential, and whether a jury instruction to consider it only against" }, { "docid": "22467426", "title": "", "text": "have appealed on several grounds. 1. Proper Joinder Rocha argues that the initial joinder of the five defendants exceeded the limits of Fed.R.Crim.P. 8 and 14 because the indictment alleged only one overt act by him. The general rule is that persons indicted together should be tried together. United States v. Kane, 887 F.2d 568, 571 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1159, 107 L.Ed.2d 1062 (1990). Because the indictment alleged that each of the defendants participated in the same conspiracy, the requirements of Rule 8 have been satisfied and joinder was proper. 2. The Spillover Effect Padilla’s co-defendants contend that the district court should have granted severance to avoid the spillover effect of the evidence which would have been inadmissible against some individual defendants had the defendants not been joined. In general, the defendants’ contention is based on two types of evidence: (1) evidence of different aspects of the scheme in which they did not participate and (2) the evidence relating only to Padilla, i.e., his drug transaction with Rodriguez and the arsenal of weapons in his home. Rocha, Garcia, Hino-josa and Gallegos argue that there was such a quantitative and qualitative disparity in the evidence among the co-defendants that each of them suffered compelling prejudice. See United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.1985). Gallegos also argues that because such a small portion of the evidence at trial was related to him, the jury must have found him guilty by association. Despite their contentions, however, none of the defendants have shown any evidence of specific prejudice. This Court has stated that when one conspiracy exists, severance is not required, even where the quantum and nature of the proof in each case is different, so long as the trial court repeatedly gives cautionary instructions. United States v. Lamp, 779 F.2d 1088, 1093-94 (5th Cir.), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986). It is clear that a defendant’s absence from a particular episode in the conspiracy does not mandate severance. United States v. DeVarona, 872 F.2d 114, 120 (5th Cir.1989)." } ]

[ { "docid": "22470257", "title": "", "text": "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). We have expounded this standard and its particulars in a symphony of cases, see, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (collecting cases), and we refrain from rehearsing this jurisprudential chorus here. For our purposes, it suffices briefly to describe the rule’s operation. The objective of summary judgment “is to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992). To defeat a motion for summary judgment, the nonmoving party must demonstrate the existence of a trialworthy issue as to some material fact. See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995). A fact is “material” if it potentially could affect the suit’s outcome. See Garside, 895 F.2d at 48. An issue concerning such a fact is “genuine” if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party’s favor. See National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995). Exercising de novo review, see Coyne, 53 F.3d at 457, we hold that the record in this case presents triable issues as to whether Dr. González violated his duty of care, and, if so, whether his actions caused José’s injuries. Consequently, the district court erred in granting the motion for brevis disposition. III. ANALYSIS We first survey the junction where summary judgment principles and the standards governing the admissibility of éxpert scientific evidence intersect. We then evaluate the lower court’s ruling. A. The defendant asserts on appeal that the entry of judgment should be affirmed because the district court had the power to exclude the plaintiff’s expert evidence" } ]

[ { "docid": "1682379", "title": "", "text": "e-mail to supervisor claiming that she was _disabled and that he was discriminating against her._ 10/30/2003-11/3/2003 (3 days) Absences due to depression_ 11/4/2003-12/1/2003 (1 month) Absences due to depression_ 11/10/2003 P & G warned Plaintiff in writing of the need to provide proper documentation regarding absences or, otherwise, _employment would be terminated._ 12/2003_Request for transfer denied_ 1/8/2004-1/21/2004 (10 days) Absences due to chicken pox_ 3/2/2004_Plaintiffs suffered car accident and reported to SIF._ 2/16/2005 Warning (failure to file timely expense reports since _December 2003)_ 3/4/2005_Termination_ 3/30/2005_Plaintiff was released to work by the SIF. II. SUMMARY JUDGMENT STANDARD A motion for summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure, which allows disposition of a case 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.” See Sands v. Ridefilm Corp., 212 F.3d 657, 660 (1st Cir.2000). A factual dispute is “genuine” if it could be resolved in favor of either party, and “material” if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004). To be successful in its attempt, the moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact in the record, DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997), through definite and competent evidence. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the non-moving party’s case, the burden shifts to the non-movant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citations omitted). If the non-movant generates uncertainty as to the true state of any material fact, the movant’s efforts should be deemed unavailing. Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir.2000). Nonetheless, the mere existence of" }, { "docid": "15386301", "title": "", "text": "lives; (5) administer the ABD/ HCBC program in accordance with reasonable written standards; and (6) provide class members with written notices of all decisions regarding their applications for the ABD/HCBC program that: (a) state the legal and factual basis for any such decision, and (b) inform them of their right to a hearing. Before the court are: . (1) defendants’ motion for summary -judgment on all counts (document no. 19), to which plaintiffs object; and (2) plaintiffs’ motion for partial summary judgment on Counts II, VI, and VII (document no. 20), to which defendants object. For the reasons stated below: (1) defendants’ motion for summary judgment is granted as to Counts I and V, denied as to Counts II, III, IV and VII, and moot' as to Count VI; and (2) plaintiffs’ motion for summary judgment is granted as to Count VII, denied as to Count II, and moot as to Count VI. Ac cordingly, this case shall proceed to trial on Counts II, III, and IV. Standard of Review Summary judgment is appropriate when the record reveals “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “To determine whether these criteria have been met, a court must pierce the boilerplate of the pleadings and carefully review the parties’ submissions to ascertain whether they reveal a trialworthy issue as to any material fact.” Perez v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir.2001) (citing Grant’s Dairy-Me., LLC v. Comm’r of Me. Dep’t of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.2000)). A material fact is “a contested fact [that] has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant.” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (citing McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). In defending against a motion for summary judgment, “[t]he non-movant may not rely on allegations in its pleadings, but must set" }, { "docid": "4423482", "title": "", "text": "Rule 56(c) Fed. R. Civ. P., which sets forth the standard for ruling on summary judgment motions, in pertinent part provides that they shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir.2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.1999). The party seeking summary judgment must first demonstrate the absence of a genuine issue of material fact in the record. De-Novellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997). A genuine issue exists if there is sufficient evidence supporting the claimed factual disputes to require a trial. Morris v. Gov’t Dev. Bank of Puerto Rico, 2,1 F.3d 746, 748 (1st Cir.1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if it might affect the outcome of a lawsuit under the governing law. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.1995). In cases where the non-movant party bears the ultimate burden of proof, he must present definite and competent evidence to rebut a motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir.2001); Grant’s Dairy v. Comm’r of Maine Dep’t of Agric., 232 F.3d 8, 14 (1st Cir.2000), and cannot rely upon “conclusory allegations, improbable inferences, and unsupported speculation”. Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st Cir.2000); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). THE SEVEN EVENTS Inasmuch as defendant has not addressed the merits of the breach of settlement agreement claim we shall limit our review to the arguments presented by DVA regarding the seven employment decisions listed in plaintiffs administrative" }, { "docid": "23068311", "title": "", "text": "had not breached the CBA). On this basis, the court disposed of the section 301 claims. Mulvihill also had asserted a defamation claim, and the court found that claim wanting as well. This appeal ensued. II. ANALYSIS We begin our analysis with a reiteration of the by-now-familiar summary judgment standard. We then provide an overview of the interaction between hybrid section 301 actions and Title VII. Finally, we turn to the merits of Mulvihill’s claims. A. The Summary Judgment Standard. The role of summary judgment is to look behind the facade erected by the pleadings and assay the parties’ proof in order to determine whether a trial will serve any useful purpose. Plumley, 303 F.3d at 368. Conventional summary judgment practice requires the moving party to assert the absence of a genuine issue of material fact and then support that assertion by affidavits, admissions, or other materials of evidentiary quality. Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 227-28 (1st Cir.1992). Once the movant has done its part, the burden shifts to the summary judgment target to demonstrate that a trialworthy issue exists. Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). • When all is said and done, summary judgment will lie only if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and' that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In conducting this tamisage, the district court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party’s favor. Morris v. Gov’t Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). This standard is notoriously liberal — but its liberality does not relieve the nonmovant of the burden of producing specific facts sufficient to deflect the swing of the summary. judgment scythe. Id. Moreover, the factual conflicts relied upon by the nonmovant must be both genuine and material. See Fed.R.Civ.P. 56(c). For this purpose, “genuine” means that" }, { "docid": "19980902", "title": "", "text": "MVM fears that Rodriguez’s letter to the USMS may be seen as a negative factor in evaluating MVM’s past performance, which is a factor under the bidding process for a government contract. IV. Summary Judgment Standard The Court’s discretion to grant summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. The Rule states, in pertinent part, that the court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52. (1st Cir.2000). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a properly supported motion has been presented, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the court’s denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). In order for a factual controversy to prevent summary judgment, the contested facts must be “material” and the dispute must be “genuine.” Material means that a contested fact has the potential to change the outcome of the suit under governing law. The issue is genuine when a reasonable jury could return a verdict for the nonmoving party based on the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is well settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Id." }, { "docid": "8299926", "title": "", "text": "political and he has made no claim that Soto-Morales or Soto-Santiago know that he is affiliated with the PDP. He claims, however, that Soto-Morales has told him that he does not trust people from the prior administration and that if it were up to him then no one from the prior administration would be there because he has fifty-two volunteers in whom he trusts (Docket No. 60-8, p. 34). In his deposition testimony, Torres-Guzman referenced the same letters and radio show referenced by some of the other plaintiffs as efforts that were made by the plaintiffs to inform the mayor of the plaintiffs’ dispute with Soto-Morales (Docket Nos. 60-8, pp. 37-38; 80, Ex. E, p. 51). III. Summary Judgment Standard The Court’s discretion to grant summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. The Rule states, in pertinent part, that the court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a properly supported motion has been presented, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the court’s denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). In order for a factual controversy to prevent summary judgment, the contested facts must be “material” and the dispute" }, { "docid": "23068312", "title": "", "text": "target to demonstrate that a trialworthy issue exists. Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). • When all is said and done, summary judgment will lie only if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and' that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In conducting this tamisage, the district court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party’s favor. Morris v. Gov’t Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). This standard is notoriously liberal — but its liberality does not relieve the nonmovant of the burden of producing specific facts sufficient to deflect the swing of the summary. judgment scythe. Id. Moreover, the factual conflicts relied upon by the nonmovant must be both genuine and material. See Fed.R.Civ.P. 56(c). For this purpose, “genuine” means that the evidence is such that a reasonable factfinder could resolve the point in favor of the nonmoving party, and “material” means that the fact is one that might affect the outcome of the suit under the applicable law. Morris, 27 F.3d at 748. This same paradigm governs our de novo review of a district court’s summary judgment rulings. Plumley, 303 F.3d at 369. There is, however, one important distinction. The court of appeals “is not restricted to the district court’s reasoning but can affirm a summary judgment on any independently sufficient ground” made manifest in the record. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991). B. The Governing Law. Federal common law supplies the substantive rules for adjudicating interlocked claims against an employer and a trade union for breach of a CBA. See Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1242 (7th Cir.1997); see also Fant v. New Engl. Power Serv., 239 F.3d 8, 14 (1st Cir.2001) (“In creating § 301 of the LMRA, Congress intended that a comprehensive, unified, body" }, { "docid": "19840056", "title": "", "text": "together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” if it has the potential to “affect the outcome of the suit under the governing law.” Id. A dispute is “genuine” when it “could be resolved in favor of either party.” Calero-Cerezo v. U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir.2004). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party must demonstrate it through definite and competent evidence. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). It must identify “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ ” which support its motion. Id. (citing Fed.R.Civ.P. 56(c)). Once a properly supported motion has been presented, the burden shifts to the non-moving party “to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal citation omitted). For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int'l, Inc., 229 F.3d 49 (1st Cir.2000). If the non-moving party establishes uncertainty as to the “true state of any material fact, the movant’s efforts should be deemed unavailing.” See Lopez & Medina Corp. v. Marsh USA, Inc., 694 F.Supp.2d 119, 123 (D.P.R.2010) (citing Suarez, 229 F.3d at 53). It is well-settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is necessary, therefore, that “a party opposing summary judgment" }, { "docid": "20121332", "title": "", "text": "that Antonia Leon Alvarado, Juana Ortiz Perez, Jose Sanchez Rodriguez, and Luis Soto Santiago’s claims are time-barred. Also, all transitory and Law 52 Plaintiffs assert to voluntarily dismiss their due process claims. Thus, pending before this Court is whether Plaintiffs pled a prim a facie case of political discrimination, whether Cereida Muñoz and Candida Jiménez’s claims for political harassment are time-barred, whether the career employees’ due process claims prosper, and whether Questell and Rodriguez are entitled to qualified immunity. Standard of Review R. Fed. Civ. P. 56 The Court may grant a motion for summary judgment 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1st Cir.2005). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines the record in the “light most favorable to the nonmovant,” and indulges all “reasonable inferences in that party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the nonmoving party’s case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). “A factual issue is ‘genuine’ if ‘it may reasonably be resolved in favor of either party’ and, therefore, requires the finder of fact to make ‘a choice between the parties’ differing versions of the truth at trial.’ ” DePoutot v. Raffaelly, 424 F.3d 112, 116 (1st Cir.2005) (citing Garside, 895 F.2d at 48 (1st Cir.1990)); see also SEC v. Fichen, 546 F.3d 45, 51" }, { "docid": "23172717", "title": "", "text": "judgment. Since we have written at length about the jurisprudence associated with that procedural device, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-15 (1st Cir.1995) (collecting cases), an outline suffices here. A district court may enter summary judgment only to the extent that “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). To determine whether these criteria have been met, a court must pierce the boilerplate of the pleadings and carefully review the parties’ submissions to ascertain whether they reveal a trialworthy issue as to any material fact. Grant’s Dairy-Me., LLC v. Comm’r of Me. Dep’t of Agrie., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.2000). In applying this screen, the court must construe the record and all reasonable inferences from it in favor of the nonmovant (i.e., the party opposing the summary judgment motion). Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000). In this formulation, an absence of evidence on a critical issue weighs against the party — be it the movant or the nonmovant — who would bear the burden of proof on that issue at trial. See Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir.1998); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). In appraising summary judgment orders, an appellate court applies essentially the same standards. See Werme v. Merrill, 84 F.3d 479, 482 (1st Cir.1996). Withal, the appellate tribunal is not wed to the trial court’s reasoning. Because appellate review is plenary, the court of appeals may, if the occasion arises, “reject the rationale employed by the lower court and still uphold its order for summary judgment.” Houlton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). In other words, we may affirm the entry of summary judgment on any ground made manifest by the record. See Mesnick v. Gen. Elec. Co., 950 F.2d" }, { "docid": "23619695", "title": "", "text": "of stock” encompass a stock split implemented as a stock dividend. In this endeavor, our principal task is to determine the ambiguity vel non of the disputed terms. Thus, we investigate whether either term is reasonably susceptible to the interpretation urged by the appellant. As part of this exercise, we consider (and reject) the appellant’s belated attempt to introduce expert testimony bearing on this question. We conclude by addressing the appellant’s claim that Level 3 breached the implied duty of good faith and fair dealing inherent in the warrant. We set out upon this odyssey mindful that the entry of summary judgment is justified only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once a defendant moves for summary judgment and places in issue the question of whether the plaintiffs case is supported by sufficient evidence, the plaintiff must establish the existence of a factual controversy that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). To carry this burden, the plaintiff must “affirmatively point to specific facts that demonstrate the existence of an authentic dispute.” McCarthy, 56 F.3d at 315. We review the district court’s entry of summary judgment de novo. Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). Thus, we are not wed to the district court’s reasoning but may affirm its order on any independently sufficient ground. Houlton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999); Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir.1987). In conducting our analysis, this court — like the district court — must scrutinize the record in the light most favorable to the party opposing summary judgment and indulge all reasonable inferences in that party’s favor. Garside, 895 F.2d at 48. These principles have a nuanced application when a motion for summary judgment hinges upon an issue of" }, { "docid": "3656741", "title": "", "text": "Plaintiffs claim that Plaintiffs termination from her employment is in violation of federal and state laws and was executed without just cause. (Docket No. 1). II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT The function of summary judgment is “to pierce the boilerplate of the pleadings and examine the parties’ proof to determine whether a trial is actually necessary.” Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 178 (1st Cir.1997). Accordingly, federal courts will grant summary judgment where “the pleadings, de positions, 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). To defeat a motion for summary judgment the resisting party will have to show the existence of “a trial worthy, issue as to some material facts.” Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997). A fact is deemed “material” if the same “potentially affect[s] the suit’s determination.” Garside v. Osco Drug Inc., 895 F.2d 46, 48 (1st Cir.1990). “An issue concerning such a fact is ‘genuine’ if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party’s favor.” Cortes-Irizarry, 111 F.3d at 187. Nonetheless, “speculation and surmise, even when coupled with effervescent optimism that something definite will materialize further down the line, are impuissant on the face of a properly documented summary judgment motion.” Ayalar-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996) (citations omitted) The movant for summary judgment, of course, must not only show that there is “no genuine issue of material facts,” but also, that he is “entitled to judgment as a matter of law.” Vega-Rodriguez, 110 F.3d at 178. Further, the court is required to examine the record “drawing all reasonable inferences helpful to the party resisting summary judgment.” Cortes-Irizarry, 111 F.3d at 187. There is “no room for credibility determinations, no room for the measured weighing of conflicting evidence such" }, { "docid": "15386302", "title": "", "text": "the record reveals “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “To determine whether these criteria have been met, a court must pierce the boilerplate of the pleadings and carefully review the parties’ submissions to ascertain whether they reveal a trialworthy issue as to any material fact.” Perez v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir.2001) (citing Grant’s Dairy-Me., LLC v. Comm’r of Me. Dep’t of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.2000)). A material fact is “a contested fact [that] has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant.” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (citing McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). In defending against a motion for summary judgment, “[t]he non-movant may not rely on allegations in its pleadings, but must set forth specific facts indicating a genuine issue for trial.” Geffon v. Micrion Corp., 249 F.3d 29, 34 (1st Cir.2001) (citing Lucia v. Prospect St. High Income Portfolio, Inc., 36 F.3d 170, 174 (1st Cir.1994)). When ruling upon a party’s motion for summary judgment, the court must “scrutinize the summary judgment record ‘in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.’ ” Navarro, 261 F.3d at 94 (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)). Factual Background The plaintiff class consists of persons with acquired brain disorders who qualify for Medicaid assistance. Acquired brain disorders are disruptions in brain function that are neither congenital nor caused by birth trauma, manifest prior to age sixty, and present “a severe and life-long disabling condition which significantly impairs a person’s ability to function in society.” N.H. Code Admin. R. He-M 522.02(a). Key symptoms include a significant decline in cognitive functioning and/or a deterioration of behavior. Id. The federal Medicaid program, as administered in New Hampshire by HHS," }, { "docid": "8574933", "title": "", "text": "the Court to enter summary judgment, asserting that the evidence, even when viewed in the light most favorable to Plaintiff, fails as a matter of law to support a claim for age discrimination. 1. SUMMARY JUDGMENT Rule 56(c) of the Federal Rules of Civil Procedure provides: “[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The purpose of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial.” Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). To make this determination, the Court must cull the record for genuine disputes of material fact, drawing all reasonable inferences in favor of the party against whom summary judgment is sought. See Kennedy v. Josephthal & Co., 814 F.2d 798, 804 (1st Cir.1987). “Material means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorable to the nonmovant.” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). “A dispute is genuine if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists and Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 200 (1st Cir.1996). If there are material factual disputes, summary judgment is inappropriate. When faced with a motion for summary judgment, the Court may consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Fed.R.Civ.P. 56(c). “In addition, a court may take into account any material that would be admissible or usable at trial ... [but] inadmissible evidence may not be considered.” Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993). Moreover, “mere allegations, or conjecture unsupported in the record, are insufficient to raise a genuine issue of material fact.” Id. (citing" }, { "docid": "2345179", "title": "", "text": "the arrest and, accordingly, granted the motion. This appeal ensued. The summary judgment device enables a court “to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992). That device functions successfully 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). Faced with a properly documented summary judgment motion, the nonmovant can thwart the motion only by showing through materials of evidentia-ry quality that a genuine dispute exists about some material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). This evidence “must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.” Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989). In assessing such a proffer, an inquiring court must resolve all evidentiary conflicts and draw all reasonable inferences in the nonmovant’s favor. Id. If the proffer, viewed through this prism, “is merely col-orable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). In an ensuing appeal, we afford plenary review, Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990), utilizing the same criteria as the trial court, Perez v. Volvo Car Corp., 247 F.3d 303, 310 (1st Cir.2001); Werme v. Merrill, 84 F.3d 479, 482 (1st Cir.1996). We turn now from the general to' the particular. Before us, the appellant mounts a four-pronged attack on the district court’s probable cause determination. She contends (i) that, the existence vel non of probable cause is always for the jury" }, { "docid": "23172716", "title": "", "text": "arrangement with AUM even though Volvo knew that the guarantees issued by AUM were worthless. Volvo adamantly denies these accusations. The district court stayed proceedings in this case pending resolution of the Bonilla appeals. That was prudent because the Bonilla plaintiffs, comprising a class of persons who had purchased Volvo automobiles of the 200 series, had leveled virtually indistinguishable charges and, moreover, had prevailed at trial. Eventually, however, this court found, as a matter of law, that the Bonilla plaintiffs had offered insufficient evidence of Volvo’s awareness of, or participation in, the ongoing fraud. See Bonilla, 150 F.3d at 72-76. Volvo then moved for summary judgment in this case, alleging that here, as in Bonil-la, the plaintiffs had failed to tie Volvo to the fraudulent scheme. The plaintiffs opposed the motion, but the district court granted it, adverting to our decision in Bonilla and invoking the doctrine of res judicata. The plaintiffs moved unsuccessfully for reconsideration and then filed this timely appeal. II. THE SUMMARY JUDGMENT STANDARD This appeal stems from an order granting summary judgment. Since we have written at length about the jurisprudence associated with that procedural device, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-15 (1st Cir.1995) (collecting cases), an outline suffices here. A district court may enter summary judgment only to the extent that “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). To determine whether these criteria have been met, a court must pierce the boilerplate of the pleadings and carefully review the parties’ submissions to ascertain whether they reveal a trialworthy issue as to any material fact. Grant’s Dairy-Me., LLC v. Comm’r of Me. Dep’t of Agrie., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.2000). In applying this screen, the court must construe the record and all reasonable inferences from it in favor of the nonmovant (i.e., the party opposing the summary judgment motion)." }, { "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": "2303698", "title": "", "text": "A court’s discretion to grant summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 states, in pertinent part, that the court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); See also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” See Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a properly supported motion has been presented, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the court’s denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int’l, Inc., 229 F.3d 49 (1st Cir.2000). In order for a factual controversy to prevent summary judgment, the contested facts must be “material” and the dispute must be “genuine”. “Material” means that a contested fact has the potential to change the outcome of the suit under governing law. The issue is “genuine” when a reasonable jury could return a verdict for the nonmoving party based on the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is well settled that “[t]he mere existence of a scintilla of evidence is insufficient to defeat a properly supported motion for summary" }, { "docid": "23172718", "title": "", "text": "Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000). In this formulation, an absence of evidence on a critical issue weighs against the party — be it the movant or the nonmovant — who would bear the burden of proof on that issue at trial. See Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir.1998); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). In appraising summary judgment orders, an appellate court applies essentially the same standards. See Werme v. Merrill, 84 F.3d 479, 482 (1st Cir.1996). Withal, the appellate tribunal is not wed to the trial court’s reasoning. Because appellate review is plenary, the court of appeals may, if the occasion arises, “reject the rationale employed by the lower court and still uphold its order for summary judgment.” Houlton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). In other words, we may affirm the entry of summary judgment on any ground made manifest by the record. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991). Against this backdrop, we divide the discussion that follows into two parts. First, we examine the district court’s stated rationale. Finding that rationale unpersuasive, we address Volvo’s alternate line of defense. III. THE DISTRICT COURT’S RATIONALE As said, the district court decided this case on the basis of res judicata. Federal law determines the preclusive effect of a judgment previously entered by a federal court. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 37 (1st Cir.1998). Under federal law, the doctrine of res judicata dictates that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Three conditions must be met in order to justify an application of the doctrine: “(1) a final judgment on the merits in an earlier suit, (2) sufficient identicality between the causes of action asserted in the" }, { "docid": "18097066", "title": "", "text": "governed by Rule 56 of the Federal Rules of Civil Procedure. The rule states, in pertinent part, that the court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.CivP. 56(c); see also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a properly supported motion has been presented, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the Court’s denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). In order for a factual controversy to prevent summary judgment, the contested facts must be “material” and the dispute must be “genuine.” Material means that a contested fact has the potential to change the outcome of the suit under governing law. The issue is genuine when a reasonable jury could return a verdict for the nonmoving party based on the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is well settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Id. at 252, 106 S.Ct. 2505. It is therefore necessary that “a party opposing summary judgment must present definite, competent evidence to rebut the motion.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). In making this assessment, the Court “must view the entire record" } ]

[ { "docid": "19943322", "title": "", "text": "bankruptcy court gave careful consideration to the evidence on this issue. IV. Bankruptcy Court Jurisdiction and Abstention. Ragosa argues that the bankruptcy court, under 28 U.S.C. § 1334(c)(1), should have abstained from hearing the Adversary Proceeding because it did not have jurisdiction over the Adversely Acquired Property. Pursuant to 28 U.S.C. § 157(b)(1), bankruptcy courts “may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.” At issue in this Adversary Proceeding was the validity of the Sale Approval Order. The First Circuit has ruled that such an order is a proceeding arising under, arising in or related to a case under title 11, stating: The underlying dispute here involves a subsequent purchaser’s interpretation of a sale order “free and clear of liens” under 11 U.S.C. § 363(b), an order that can only be issued by a bankruptcy court, and so it is one that arises in a case under title 11 or perhaps arises under title 11. New Eng. Power & Marine, Inc. v. Town of Tyngsborough (In re Middlesex Power Equip. & Marine, Inc.), 292 F.3d 61, 68 (1st Cir.2002). Therefore, the bankruptcy court had concurrent, but not exclusive, jurisdiction over this matter. As such, the matter was subject to the abstention provisions of 28 U.S.C. § 1334(c). Discretionary or permissive abstention is governed by 28 U.S.C. § 1334(c)(1), which provides that: Nothing in this section prevents a district court in the interest of justice or in the interest of comity with state courts or respect for state law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. 28 U.S.C. § 1334(c)(1). Courts have broad discretion to abstain from hearing state law claims whenever appropriate “in the interest of justice, or in the interest of comity with State courts or respect for State law.” New Eng. Power, 292" } ]

[ { "docid": "15385501", "title": "", "text": "authorized by § 1447(c).” 423 U.S. at 343, 96 S.Ct. 584. The Thermtron Court defined the grounds for remand which were authorized by § 1447(c) as being that removal was improvident or without jurisdiction. Id. The Court in Quackenbush further defined the categories of remand orders that are unappealable under § 1447(d) as those based on lack of subject matter jurisdiction or defects in the removal procedure. 517 U.S. at 712, 116 S.Ct. 1712. In Thermtron, the Court concluded that There is no doubt that in order to prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues, ... Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court. 423 U.S. at 351, 96 S.Ct. 584. With these explanations of the two remand statutes in mind, we will turn to the Delaware District Court’s remand of this case to the Delaware Superior Court. The reason stated by the Delaware District Court to support its decision was that the complaint raised only state law claims for fraud and negligent misrepresentation and related bankruptcy law claims, which were aimed at avoiding the fraudulent transfers. Thus, the District Court found that it had no § 1331 jurisdiction but only § 1334 bankruptcy jurisdiction. Citing § 1334(c), without designating a subsection, the court then determined that it “must abstain from hearing this matter.” In making this ruling, the District Court cited language from § 1334(c)(2), the mandatory remand subsection. The court, however, then noted that Breed’s §§ 544(b) and 550 claims “by definition” did arise under Title 11. Because the “arising under title 11” nature of Breed’s claim would render § 1334(c)(2) inapplicable, we have to presume that the District Court based its abstention decision on the permissive abstention language of § 1334(c)(1). Section 1334(c)(1) abstention is made “in the interest of justice, or in the interest of comity with State courts or respect for State law.” We conclude for this reason that a remand based on such" }, { "docid": "1026613", "title": "", "text": "that the motion was timely filed because, pursuant to 28 U.S.C. § 1447(c), it was filed within 30 days from the time that the proceeding was removed from the Philadelphia County Court of Common Pleas. In response, J.K. Harris argues that Section 1447(c) is inapplicable in this case, as that provision “applies only to situations where a plaintiff seeks a remand based upon a defect in the removal procedure.” J.K. Harris Surreply in Opposition to Motion to Remand (“Surreply”) at 2. Additionally, J.K. Harris argues that the Allen motion cannot be considered to be “timely filed” because Ms. Allen waived her right to seek abstention by taking certain actions in the bankruptcy court after the case was removed. (1) Applicability of Section 1447(c) Section 1447(c) provides that a motion to remand a case “on the basis of any defect other than lack of subject matter jurisdiction” must be made within 30 days after the filing of a notice of removal. 28 U.S.C. § 1447(c). A district court’s remand of a case based on its decision to abstain from hearing it does not fall into either category set forth in Section 1447(c). Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). This Court concludes that J.K. Harris is correct with respect to the inapplicability of Section 1447(c). Therefore, the Court must consider whether the motion was timely filed given the circumstances of this case without regard to Section 1447(c). (2) Timeliness of Filing and Waiver The failure to timely move for mandatory abstention may constitute a waiver of the right. See Grauman v. Smith (In re U.S. Physicians, Inc.), Nos. 00-4622, 00-138, 2001 WL 793271 (E.D.Pa.2001) (mandatory abstention not warranted where motion to abstain was filed after bankruptcy court conducted trial and submitted proposed findings of fact and conclusions of law); Novak v. Lorenz (In re Novak), 116 B.R. 626, 628 (N.D.Ill.1990) (mandatory abstention waived because motion to abstain was filed by defendant one year after it had answered complaint in adversary proceeding). While Section 1334(c)(2) provides that a motion to abstain shall be" }, { "docid": "15385502", "title": "", "text": "District Court to support its decision was that the complaint raised only state law claims for fraud and negligent misrepresentation and related bankruptcy law claims, which were aimed at avoiding the fraudulent transfers. Thus, the District Court found that it had no § 1331 jurisdiction but only § 1334 bankruptcy jurisdiction. Citing § 1334(c), without designating a subsection, the court then determined that it “must abstain from hearing this matter.” In making this ruling, the District Court cited language from § 1334(c)(2), the mandatory remand subsection. The court, however, then noted that Breed’s §§ 544(b) and 550 claims “by definition” did arise under Title 11. Because the “arising under title 11” nature of Breed’s claim would render § 1334(c)(2) inapplicable, we have to presume that the District Court based its abstention decision on the permissive abstention language of § 1334(c)(1). Section 1334(c)(1) abstention is made “in the interest of justice, or in the interest of comity with State courts or respect for State law.” We conclude for this reason that a remand based on such abstention falls under the “any equitable ground” provision of § 1452(b), i.e., here, a concern that state courts decide state law issues. Thus, appellate review would appear to be barred by § 1452(b) if remand is based on § 1334(c)(1). Indeed, § 1334(d) (with one unrelated exception) bars review of abstention orders based on § 1334(c) — thereby getting us the same result by a different route. Moreover, such a remand, based on state law concerns, is not made for lack of subject matter jurisdiction or defect in the removal procedure, the criteria for remand under § 1447(c) and for the non-reviewa-bility provisions of § 1447(d). As a consequence, we determine that the remand order here falls under § 1452(b), not under § 1447(d), and that it is not reviewable. (1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to" }, { "docid": "20585063", "title": "", "text": "to the State court from which it was removed is not reviewable on appeal or otherwise.... ” Though § 1447(d) does not explicitly provide an exception, the Supreme Court reasoned that “ ‘§ 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c)’ ” — lack of subject matter jurisdiction or procedural defects in removal— “ ‘are immune from review under § 1447(d).’ ” Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712 (quoting Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)). Thus, a remand under § 1447 is reviewable if the district court remanded for a reason other than those listed in § 1447(c). Id.; Schexnayder, 394 F.3d at 283. If the statutory bars to review do not apply, a remand order is a final order for the purposes of 28 U.S.C. § 1291. See Quackenbush, 517 U.S. at 713, 116 S.Ct. 1712. Though § 1447(d) is not at issue here, the reasoning in Quackenbush is applicable in this case as well. The district court permissively abstained under § 1334(c)(1) and equitably remanded pursuant to § 1452(b). The district court did not address the related Chapter 15 bankruptcies. Courts may permissively abstain from certain bankruptcy cases “[ejxcept with respect to a case under chapter 15.” 28 U.S.C. § 1334(c)(1) (emphasis added). Defendants base their challenge to the district court’s order on the argument that § 1452 does not apply in this case, rather than on the court’s reasons for remand. We conclude that Defendants’ challenge to the remand order thus falls within an exception to nonreviewability. See Schexnayder, 394 F.3d at 283 (the Fifth Circuit will review a case if based on a ground for remand not contemplated by remand statute); Wilson Indus., 886 F.2d at 95 (holding that an appellate court can review a district court’s decision to remand when that decision rests “upon a ground not authorized by statute”). We therefore recognize a limited exception to the nonreviewability provisions of §§ 1334(c)(1) and 1452(b), but only for cases that" }, { "docid": "15582906", "title": "", "text": "this appeal is whether the district court had subject matter jurisdiction.”) (footnote omitted). The parties initially did not question our jurisdiction. Prior to argument, however, we observed that there might be a problem with respect to our jurisdiction. Thus, at our direction, our clerk sent a notice to the parties requesting that they “be prepared to briefly discuss whether 28 U.S.C. § 1334(d) precludes us from reviewing both the Bankruptcy Court’s decision to abstain under § 1334(c)(1) and the District Court’s affirmance of this decision, because discretionary abstention does not appear to be subject to appeal pursuant to § 1334(d).” At oral argument, we expressed an additional concern with respect to our jurisdiction to review certain aspects of the case under 28 U.S.C. § 1452(b), the bankruptcy removal statute, which bars a court of appeals’ review of decisions to remand or not to remand made on the basis of “any equitable ground.” Accordingly, we asked the parties to submit supplemental memoranda addressing jurisdictional issues. Having given the parties an opportunity to address the questions relating to our jurisdiction, and having received those memo-randa and heard their oral arguments, the issues with respect to our jurisdiction are now ripe for our disposition. The essence of this appeal is that the bankruptcy or district court should have remanded the case to the state court because (1) Ernst & Young’s notice of removal was procedurally defective, (2) the federal courts lacked subject matter jurisdiction over the state-law causes of action, (3) the bankruptcy court lacked final adjudicative authority, and (4) the federal courts should have abstained permissively or were required to abstain mandatorily from asserting their jurisdiction. There are three statutory provisions potentially affecting our jurisdiction to review the orders in which the bankruptcy and district courts declined to remand the case, assumed jurisdiction, and did not abstain from asserting jurisdiction: 28 U.S.C. § 1447(d) (general removal/remand); 28 U.S.C. § 1452(b) (bankruptcy removal/remand); and 28 U.S.C. § 1384(c) and (d) (bankruptcy abstention and limitation of appeals of orders with respect to abstention). Section 1447(d) is the general statutory provision governing the reviewability of" }, { "docid": "7961466", "title": "", "text": "review of remand orders “whether erroneous or not and whether review is sought by appeal or by extraordinary writ,” Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976), the proscription is deeper than it is wide. Because courts must read section 1447(d) in pari materia with its statutory neighbor, 28 U.S.C. § 1447(c), see Thermtron, 423 U.S. at 353, 96 S.Ct. at 593, only remand orders issued under the authority of section 1447(c) are rendered unreviewable by the operation of section 1447(d), see Garcia v. Island Program Designer, Inc., 4 F.3d 57, 58-59 (1st Cir.1993); V & M Management, 929 F.2d at 832-33. And, since section 1447(c), by its terms, is concerned exclusively with remands stemming from “defect[s] in removal procedure” such that “the district court lacks subject matter jurisdiction,” it follows that section 1447(d) leaves open the possibility of appellate review in all cases that are remanded for reasons not covered by section 1447(c). This is such an instance. Despite the fact that Doughty articulated several reasons for remanding the case, many of which implicated section 1447(c), the district court shunted these asseverations to one side and instead remanded exclusively on the basis of Burford abstention. Because abstention, by definition, assumes the existence of subject matter jurisdiction in the abstaining court—after all, one must have (or, at least, presume the presence of) subject matter jurisdiction in order to decline the exercise of it—-section 1447(c) does not apply to an abstention-driven remand. See Corcoran v. Ardra Ins. Co., 842 F.2d 31, 34 (2d Cir.1988). Hence, the statutory bar does not preclude us from reviewing the lower court’s remand order. B. Possible Sources of Appellate Jurisdiction. Our determination that 28 U.S.C. § 1447(d) does not operate to bar appellate review merely removes the first hurdle blocking the jurisdictional path. To pass the next hurdle, the Reinsurers must demonstrate the existence and applicability of some affirmative authority conferring jurisdiction on the courts of appeals to review remand orders of the sort at issue here. The Rein-surers try to clear this hurdle from three different" }, { "docid": "15604286", "title": "", "text": "court has subject matter jurisdiction to entertain the action. See Caterpillar, Inc., 482 U.S. at 392-93, 107 S.Ct. 2425 (affirming appellate court’s remand to state court finding removal of state claim for breach of employment contract improper because requirement for complete preemption under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, not satisfied and federal question jurisdiction not otherwise apparent on the face of complaint). If a district court determines the action is not a “preempted class action” and, therefore, removal was improper, the district court lacks subject matter jurisdiction to further entertain the action. Rather than dismiss for want of jurisdiction, both the general remand statute, 28 U.S.C. § 1447(c), and SLUSA’s remand provision, 15 U.S.C. § 78bb(f)(3)(D), require the district court to remand the removed action back to the originating state court. The question then presented — which is the threshold issue raised in Merrill Lynch’s appeal — is whether a remand order such as the one issued in this case is reviewable on appeal. It is this question, which turns on the interplay between Section 1447(c) and SLUSA’s remand provision, that we now examine. B. The General Remand Statute, 28 U.S.C. § lU7(c) The general remand statute, Section 1447(e), provides, in pertinent part, that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Section 1447(d) provides that (with the exception of certain civil rights cases), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” 28 U.S.C. § 1447(d). Reading Section 1447(d) in pari materia with Section 1447(c), as we must, see Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995) (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-6, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976)) , Section 1447(d) bars appellate review of remand orders based on any ground recognized in Section 1447(c), such as perceived lack of subject matter jurisdiction, id.; cf. Quackenbush" }, { "docid": "15582916", "title": "", "text": "jurisdictional limitations of section 1452(b).”); In re V & M Mgmt., Inc., 321 F.3d 6, 7 (1st Cir.2003) (“Because [appellant’s] argument attacks the lower court’s subject matter jurisdiction, we not only have jurisdiction to review but are obligated to do so.”); Owens-Ill., Inc. v. Rapid Am. Corp. (In re Celotex Corp.), 124 F.3d 619, 625 (4th Cir.1997) (“[W]e hold that § 1452(b) ... does not preclude us from reviewing the district court’s decision denying [the] motion to remand to the extent that [the] motion rested on the district court allegedly lacking subject matter jurisdiction.”). We reach our conclusion because courts of appeals on appeals from bankruptcy and district courts must ensure that those courts do not exceed the authority that Article III of the Constitution and Congress has granted them. Section 1452 cannot detract from this obligation and we are of the view that a bankruptcy judge absent consent of the parties does not have jurisdiction to enter a final order in a non-core matter. 28 U.S.C. § 157(c). Of course, there is no question that the district court had jurisdiction to entertain the appeal from the bankruptcy court. See 28 U.S.C. § 158(a). C. Abstention The question of whether we have jurisdiction to review the district court’s affir-mance of the bankruptcy court’s decision not to abstain under 28 U.S.C. § 1334(c)(2) (mandatory abstention) and section 1334(c)(1) (permissive abstention) is a two-step process. First, we must decide which version of section 1334 we are to apply in this case. This selection is significant as Congress adopted amendments to section 1334 altering courts of appeals’ jurisdiction in 1984 (“the 1984 Amendments”), 1990 (“the 1990 Amendments”), and 1994 (“the 1994 Amendments”). Congress enacted the current version of section 1334 in the 1994 Amendments, though it further amended section 1334 in technical non-substantive respects in 2005. Second, once we decide which version of section 1334 applies, we must construe the statute to determine the extent of and limitations on a court of appeals’ jurisdiction over abstention decisions. Under the current version of section 1334(d), [a]ny decision to abstain or not to abstain made" }, { "docid": "15604287", "title": "", "text": "this question, which turns on the interplay between Section 1447(c) and SLUSA’s remand provision, that we now examine. B. The General Remand Statute, 28 U.S.C. § lU7(c) The general remand statute, Section 1447(e), provides, in pertinent part, that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Section 1447(d) provides that (with the exception of certain civil rights cases), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” 28 U.S.C. § 1447(d). Reading Section 1447(d) in pari materia with Section 1447(c), as we must, see Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995) (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-6, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976)) , Section 1447(d) bars appellate review of remand orders based on any ground recognized in Section 1447(c), such as perceived lack of subject matter jurisdiction, id.; cf. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (holding that non-jurisdictional, discretionary remand such as on abstention grounds is not barred from appellate review). The prohibition against appellate review extends “ ‘not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well,’ ” Things Remembered, 516 U.S. at 124, 116 S.Ct. 494 (quoting United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 90 L.Ed. 982 (1946) (modification and emphasis in original)), unless Congress issues “a clear statutory command to the contrary,” id. This holds true even if the “any other statute” contains an express remand provision of its own. Id. at 129, 116 S.Ct. 494 (holding that remand provision in 28 U.S.C. § 1452(b) applicable to bankruptcy cases does not operate to the exclusion of Sections 1447(c) and (d)). Courts recognize a “strong congressional policy against review of remand orders,” Sykes v. Texas Air Corp., 834 F.2d 488," }, { "docid": "11819100", "title": "", "text": "matter jurisdiction, and remand was therefore required under 28 U.S.C. 1447(c). In the alternative, Lobel argued that the Court should abstain from hearing the Adversary Proceeding pursuant to 28 U.S.C. § 1334(c)(1) or (c)(2), and remand the case to state court pursuant to 28 U.S.C. § 1452(b). DISCUSSION A. Subject Matter Jurisdiction Section 1452(a) of title 28 authorizes any party to a state court civil action to remove a claim or cause of action to the local district court provided that the claim or cause of action meets the jurisdictional requirements of 28 U.S.C. § 1334. In addition, 28 U.S.C. § 1447, which deals with the procedure following the removal of “the case,” requires the district court to remand a case if the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). “There is no express indication in § 1452 that Congress intended that statute to be the exclusive provision governing removals and remands in bankruptcy,” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 129, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995), and the net effect of the two provisions is that the district court, and hence, the bankruptcy court, must remand any removed claim or cause of action over which it lacks subject matter jurisdiction. Subject matter jurisdiction over a removed claim is determined by the facts existing at the time of removal. Certain Underwriters at Lloyd’s, London v. ABB Lummus Global, Inc., 337 B.R. 22, 25 (S.D.N.Y.2005); In re WorldCom, Inc. Secs. Litig., 294 B.R. 553, 556 (S.D.N.Y.2003). The post-removal Stipulation and Amended Complaint are, therefore, immaterial. The question comes down to whether the Guarantee Claim asserted by Joremi against Lobel in the State Court Action fell within § 1334. See Halper v. Halper, 164 F.3d 830, 837 (3d Cir.1999)(“To determine the extent of the Bankruptcy Court’s jurisdiction in this case we must examine each of the five claims presented to ascertain if it is core, non-core, or wholly unrelated to a bankruptcy case.”); Peterson v. 610 W. 142 Owners Corp. (In re 610 W. 142 Owners Corp.), 219 B.R. 363, 368 (Bankr.S.D.N.Y.1998)(“[T]he core/non-core determination may vary" }, { "docid": "20105560", "title": "", "text": "jurisdiction. Any decision to abstain or not to abstain made under this subsection is not reviewable by appeal or otherwise by the court of appeals.... It bears noting at the outset that the abstention provisions implicate the question whether the bankruptcy court should exercise jurisdiction, not whether the court has jurisdiction in the first instance. See In re Texaco, 77 B.R. 433, 438 (Bankr.S.D.N.Y.1987); In re 666 Assocs., 57 B.R. 8, 13 n. 6 (Bankr.S.D.N.Y.1985). To paraphrase, § 1334(c)(2) requires the district court to abstain from hearing a non-core matter which can be timely adjudicated in state court in a previously commenced action. The act of abstaining presumes that proper jurisdiction otherwise exists. While Congress proscribed general review of mandatory abstention, we have recognized limited reviewability of abstention decisions under § 1334(c)(2) to ensure that the statutory requirements prerequisite to mandatory abstention are met. See In re Ben Cooper, Inc., 924 F.2d 36, 38 (2d Cir.), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991); cf. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351-52, 96 S.Ct. 584, 593-94, 46 L.Ed.2d 542 (1976) (mandamus review of bankruptcy remand orders despite jurisdictional bar permitted to ensure compliance with remand statute). The most obvious limitation on the applicability of mandatory abstention is that it applies only to claims “related to a case under title 11 but not arising under title 11 or arising in a case under title 11”; that is, abstention is only mandated with respect to non-core matters. See In re Mills, 163 B.R. 198, 202 (Bankr.D.Kan.1994); In re Robb, 139 B.R. 791, 796 (Bankr.S.D.N.Y.1992). When a district court abstains from hearing cases involving “core” proceedings, the abstention decision can only be made pursuant to § 1334(c)(1), which leaves abstention to the district judge’s discretion. Such decisions are subject to appellate review. In re Ben Cooper, 924 F.2d at 38. Given our conclusion that the determination of the City’s claim is a core matter, mandatory abstention under § 1334(c)(2) does not apply. See id. Consequently, the bankruptcy court’s exercise of jurisdiction in this case was within its" }, { "docid": "14790771", "title": "", "text": "sum, the Bankruptcy Court determined that the Re-plevin Actions are core proceedings and, therefore, mandatory abstention under § 1334(c)(2) did not apply. The Court also declined to abstain under § 1334(e)(l)’s discretionary abstention provision, and denied the requests to remand based on equitable grounds under 28 U.S.C. § 1452(b). Klein Bank appeals. STANDARD OF REVIEW We have jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 158(a)(1) and 158(c)(1), which vest the Bankruptcy Appellate Panel with jurisdiction to hear appeals from final judgments, orders, and decrees of the bankruptcy courts. Although decisions to, or not to, abstain or remand are not subject to review “by appeal or otherwise” by “the court of appeals” or by “the Supreme Court of the United States” appellate review by this Court is permitted pursuant to 28 U.S.C. §§ 1334(d) and 1452(b). Because the outcome of this appeal turns on whether the Court was required to abstain under 28 U.S.C. § 1334(c)(2), our review is de novo DISCUSSION With certain exceptions not relevant here, 28 U.S.C. § 1452 permits a party to remove any claim or cause of action in a civil action to the district court if the district court has jurisdiction of such claim or cause of action under 28 U.S.C. § 1334. Section 1334(a) gives the federal district courts “original and exclusive jurisdiction over cases under title 11” — in other words, bankruptcy cases themselves. Section 1334(b) gives federal courts nonexclusive jurisdiction over “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” Such civil proceedings are divided into two categories: core proceedings and non-core, related proceedings. Core proceedings are those cases arising under title 11, or arising in a case under title ll. Core proceedings include, but are not limited to, sixteen examples of types of matters listed in 28 U.S.C. § 157(b)(2). Non-core, related-to proceedings are those which “could conceivably have [an] effect on the estate being administered in bankruptcy.” District courts may refer bankruptcy cases to bankruptcy courts pursuant to 28 U.S.C. § 157(a). 28 U.S.C. § 1334 contains two provisions" }, { "docid": "20105559", "title": "", "text": "resolution of its claims in bankruptcy court. 2. Abstention The district court held that because the City had a state law action pending in state court when the petition was filed, the mandatory abstention provision, 28 U.S.C. § 1334(c)(2), required the bankruptcy court to abstain in order to allow the state court action to proceed. The City argues that the district court’s holding is not only correct, but that § 1334(c)(2) deprives this court of jurisdiction to review it. Section 1334(c)(2) provides in relevant part: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Any decision to abstain or not to abstain made under this subsection is not reviewable by appeal or otherwise by the court of appeals.... It bears noting at the outset that the abstention provisions implicate the question whether the bankruptcy court should exercise jurisdiction, not whether the court has jurisdiction in the first instance. See In re Texaco, 77 B.R. 433, 438 (Bankr.S.D.N.Y.1987); In re 666 Assocs., 57 B.R. 8, 13 n. 6 (Bankr.S.D.N.Y.1985). To paraphrase, § 1334(c)(2) requires the district court to abstain from hearing a non-core matter which can be timely adjudicated in state court in a previously commenced action. The act of abstaining presumes that proper jurisdiction otherwise exists. While Congress proscribed general review of mandatory abstention, we have recognized limited reviewability of abstention decisions under § 1334(c)(2) to ensure that the statutory requirements prerequisite to mandatory abstention are met. See In re Ben Cooper, Inc., 924 F.2d 36, 38 (2d Cir.), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991); cf. Thermtron Prods., Inc. v. Hermansdorfer, 423" }, { "docid": "8720552", "title": "", "text": "the implementation thereof[,] and this Order.” Luan did not object or appeal from the sale order, confirmation order, or plan on the basis of personal jurisdiction. Accordingly, in addition to submitting to the bankruptcy court’s jurisdiction with regard to its claims against the estate, Luan submitted to jurisdiction of the bankruptcy court with regard to the sale order and its enforcement. Because the plan consummation motion sought enforcement of the sale order, the bankruptcy court had personal jurisdiction over Luan with regard to the motion. II. Abstention Luan argues that the bankruptcy court erred by failing to abstain from hearing the plan consummation motion and the district court erred by affirming the bankruptcy court’s decision. Section 1334(c)(2) of Title 28 of the United States Code “requires the district court to abstain from hearing a non-core matter which can be timely adjudicated in state court in a previously commenced action.” In re S.G. Phillips Constrs., Inc., 45 F.3d at 708. Abstention is only mandated with respect to non-core matters. Id. Therefore, where a matter constitutes a core proceeding, the mandatory abstention provisions of section 1334(c)(2) are inapplicable. As discussed above, the resolution of the plan consummation motion was a core proceeding. Therefore, mandatory abstention pursuant to 28 U.S.C. § 1334(c)(2) does not apply. Id.; Ben Cooper, Inc. v. Ins. Co. of the State of Penn. (In re Ben Cooper, Inc.), 924 F.2d 36, 38 (2d Cir.1991). Permissive abstention from core proceedings under 28 U.S.C. § 1334(c)(1) is left to the bankruptcy court’s discretion. In re S.G. Phillips Constrs., Inc., 45 F.3d at 708. Permissive abstention can be warranted “in the interest of justice, or in the interest of comity with State courts or respect for State law.” 28 U.S.C. § 1334(c)(1) (2001). In this case, the bankruptcy court did not abstain because the factors bearing on the interests of justice weighed heavily against abstention to avoid inconsistent interpretation of the lease and to prevent Luan from forum shopping. We find that the bankruptcy court’s decision not to abstain under such circumstances fell within its discretion. III. Parol Evidence Luan argues that" }, { "docid": "10890483", "title": "", "text": "Bankruptcy Code or “arise in” a bankruptcy case. In the District Court’s view, Stoe’s claim was “inextricably intertwined with the Bankruptcy Code and would not exist, but for, the bankruptcy filing.” As a result, the District Court held that Stoe’s claim “ ‘arises in’ the bankruptcy proceeding.” Id. at 10. After Stoe responded to the defendants’ motions to dismiss, the District Court ruled, following our decision in Belcufine v. Aloe, 112 F.3d 633 (3d Cir.1997), that Stoe did not state a valid claim under the WPCL. Stoe does not challenge the merits of that ruling before us, but rather argues that the District Court was required to abstain from hearing his case and consequently lacked jurisdiction to enter the order of dismissal. II. We have jurisdiction to review the District Court’s order dismissing Stoe’s action pursuant to 28 U.S.C. § 1291. In addition, the District Court’s prior order denying Stoe’s motion for mandatory abstention is renewable under 28 U.S.C. § 1334(d). We are cognizant that decisions not to remand are “not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of [title 28].” 28 U.S.C. § 1452(b). By contrast, appeals of decisions not to exercise mandatory abstention pursuant to § 1334(c)(2) are explicitly permitted under § 1334(d). Stoe appeals the District Court’s decision not to abstain and we accordingly consider only the propriety of that decision, not the District Court’s decision regarding remand. As the Second Circuit noted recently, “If we determine ... the district court erred by not abstaining, the district court properly could both abstain and remand when this lawsuit is returned to it. However, that reality would not alter the fact that we would have reviewed only the decision not to abstain.” Mt. McKinley Ins. Co. v. Corning Inc., 399 F.3d 436, 445 (2nd Cir.2005). The District Coux-t’s detex'mination that the mandatory abstention provision of § 1334(c)(2) does not apply to removed cases is a question of statutox’y interpretation that we review de novo. Tavarez v. Klingensmith, 372 F.3d 188, 189 n. 1 (3d Cir.2004). We similarly exercise plenary review" }, { "docid": "15867480", "title": "", "text": "arising in or related to cases under title 11. Writing for the court in Phillips, Circuit Judge John M. Walker, Jr. stated: The most obvious limitation on the applicability of mandatory abstention is that it applies only to claims \"related to a case under title 11 but not arising under title 11 or arising in a case under title 11”; that is, abstention is only mandated with respect to non-core matters. See In re Mills, 163 B.R. 198, 202 (Bankr. D.Kan.1994); In re Robb, 139 B.R. 791, 796 (Bankr.S.D.N.Y.1992). When a district court abstains from hearing cases involving \"core” proceedings, the abstention decision can only be made pursuant to § 1334(c)(1), which leaves abstention to the district judge’s discretion. Such decisions are subject to appellate review. In re Ben Cooper, 924 F.2d [36] at 38 [(2nd Cir.1991)]. Given our conclusion that the determination of the City's claim is a core matter, mandatory abstention under § 1334(c)(2) does not apply. See id. Consequently, the bankruptcy court's exercise of jurisdiction in this case was within its discretion and was therefore proper. Id. at 708. The affirmation of the bankruptcy court’s exercise of jurisdiction in Phillips is an affirmation of this Court’s exercise of' its “core” jurisdiction over the plaintiff’s notice of removal, the debtor’s motion to remand, the plaintiff's filed claim and the debtor's objection to that claim and of this Court's exercise of its discretion to abstain pursuant to 28 U.S.C. § 1334(c)(1) from hearing the substance of the plaintiff's action. . The discretionary abstention provisions of 28 U.S.C. § 1334(c)(1) allow this Court to raise this issue sua sponte. . The \"arising” and \"related” language of section 1334(c)(1) is identical to the “arising” and \"related” criteria of jurisdiction; consequently, if a matter is properly removed to a court with \"arising\" or “related\" jurisdiction, the abstention provisions of section 1334(c)(1) may be considered. . At least one court believes that, \"abstention under § 1334(c), be it mandatory or discretionary, has no application in the context of a removed action.\" In re Branded Products, Inc., 154 B.R. 936 (Bankr.W.D.Tex.1993) (reasoning that once" }, { "docid": "20585061", "title": "", "text": "the district court’s order remanding the case to state court. Ordinarily, we cannot review orders to remand based on §§ 1334 or 1452. See § 1334(d) (“Any decision to abstain or not to abstain made under subsection (c) ... is not reviewable by appeal or otherwise by the court of appeals____”); § 1452(b) (“An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals____”). We have held that a remand order is unreviewable even if the order “rests on a misinterpretation of the remand statute,” In re Wilson Indus., 886 F.2d 93, 95 (5th Cir.1989), or if the district court’s reasons for the order are incorrect, Sykes v. Tx. Air Corp., 834 F.2d 488, 492-93 (5th Cir.1987) (noting an “absolute bar” against reviewing district court’s decision to remand under § 1452, whether the reasons are equitable or based on a lack of bankruptcy jurisdiction). However, there are limited circumstances under which we may review a remand order. See In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir.1991) (“[Wlhere an exception to non-reviewability exists, an appellate court has jurisdiction to review the remand order....” (quotation marks and citation omitted)). The Supreme Court has held that provisions barring review do not apply if the district court exceeds its statutorily-defined authority to remand. See, e.g., Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (holding that the district judge, who remanded a properly removed case where there was diversity jurisdiction, exceeded statutory authority when he remanded that case based on efficiency). In Quackenbush v. Allstate Insurance Company, the Supreme Court recognized a limited class of situations in which remand orders under the general removal statute, 28 U.S.C. § 1447, are reviewable on appeal. 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); see also Schexnayder v. Entergy La., Inc., 394 F.3d 280, 283 (5th Cir.2004). Like the provisions at issue in this case, § 1447(d) provides that “[a]n order remanding a case" }, { "docid": "14790770", "title": "", "text": "proceedings which cannot be resolved without affecting the Debtors’ bankruptcy estates; (2) the Replevin Actions are related to the Debtors’ respective bankruptcy cases and, therefore, it would be more efficient and expeditious to have them heard in bankruptcy court; and (3) the United States District Court for the District of Minnesota has original jurisdiction under 28 U.S.C. § 1334. On April 6, 2011, Klein Bank filed motions to remand both of the Replevin Actions to the Wright County District Court. Klein Bank asserted that remand was appropriate because (1) the Replevin Actions were not core proceedings under 28 U.S.C. § 157; (2) even if “related to” the bankruptcy cases, the Replevin Actions could not have been commenced in the bankruptcy court absent jurisdiction under 28 U.S.C. § 1334(b); (3) the interests of justice favored discretionary abstention under 28 U.S.C. § 1334(c)(1); and (4) equity supported discretionary remand under 28 U.S.C. § 1452(b). The Debtors objected to remand. Following a hearing held on April 20, 2011, the Bankruptcy Court denied the Bank’s motions for remand. In sum, the Bankruptcy Court determined that the Re-plevin Actions are core proceedings and, therefore, mandatory abstention under § 1334(c)(2) did not apply. The Court also declined to abstain under § 1334(e)(l)’s discretionary abstention provision, and denied the requests to remand based on equitable grounds under 28 U.S.C. § 1452(b). Klein Bank appeals. STANDARD OF REVIEW We have jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 158(a)(1) and 158(c)(1), which vest the Bankruptcy Appellate Panel with jurisdiction to hear appeals from final judgments, orders, and decrees of the bankruptcy courts. Although decisions to, or not to, abstain or remand are not subject to review “by appeal or otherwise” by “the court of appeals” or by “the Supreme Court of the United States” appellate review by this Court is permitted pursuant to 28 U.S.C. §§ 1334(d) and 1452(b). Because the outcome of this appeal turns on whether the Court was required to abstain under 28 U.S.C. § 1334(c)(2), our review is de novo DISCUSSION With certain exceptions not relevant here, 28 U.S.C. § 1452 permits" }, { "docid": "8886583", "title": "", "text": "applies to both core and non-core matters. 1 Collier On Bankruptcy, 11 3.01[3][a] at 3-68 (15th ed.1989). Authority in this District properly holds that the discretionary abstention provision allows the Bankruptcy Court to render a final decision to abstain. In re Pankau, 65 B.R. 204, 209 n. 6 (Bankr.N.D.Ill.1986) (Ginsberg, J.). Pankau found that the mandatory abstention provision then contained a limitation on appealability of an order to abstain, which thus gave rise to a question as to whether an Article I bankruptcy judge could constitutionally enter a final but nonappealable order. However, there is no similar limitation on appeal from an order for discretionary abstention under 28 U.S.C. § 1334(c)(1). Id.; see also In re Williams, 88 B.R. 187, 188 n. 2 (Bankr.N.D.Ill.1988) (Ginsberg, J.). Thus, the court in Pankau and Williams questioned the validity of Bankruptcy Rule 5011(b), and found it to be in direct conflict with 28 U.S.C. § 1334(c)(1). Id. This Court concurs with Pankau and Williams and finds, in the absence of any statutory limitation on appeals of such orders, that a bankruptcy judge’s order with regard to discretionary abstention is a final order. Presently, moreover, a bankruptcy judge’s order with regard to mandatory abstention under 28 U.S.C. § 1334(e)(2) is also a final order. At the time of Pankau and Williams, Section 1334(c)(2) read as follows: ... Any decision to abstain made under this subsection is not reviewable by appeal or otherwise_ 28 U.S.C. § 1334(c)(2). Thus, Section 1334(c)(2) provided a limitation on appeals of mandatory abstention orders, which prevented a bankruptcy judge, as an Article I judge, from constitutionally entering a final nonappealable order. However, Section 1334(c)(2) was recently amended as follows: Any decision to abstain or not to abstain made under this subsection is not reviewable by appeal or otherwise by the court of appeals under section 158(d).... 28 U.S.C. § 1334(c)(2). By providing that mandatory abstention orders are not reviewable specifically by the Court of Appeals, Congress clearly intended the limitation on appeals from mandatory abstention orders applies only to orders of the District Court. Therefore, there is no limitation on" }, { "docid": "17757041", "title": "", "text": "Growers’ ease to the state court — an issue not raised by this appeal and, in any event, not reviewable by this court. Consequently, the district court’s decision to withdraw the reference from the bankruptcy court did not amount to an abuse of discretion. B. Denial of Motion to Abstain As a Decision Not to Remand Relying on the conclusions reached by Judge Orrick in his order withdrawing -the reference, Judge Ware, now presiding because of the venue change, summarily denied Growers’ motion to abstain. Abstention is . governed by 28 U.S.C. § 1334(c) and, like withdrawal of the reference, can be either permissive or mandatory. Section 1334(c)(1) provides for permissive abstention in both core and non-core proceedings while the mandate to abstain contained in section 1334(e)(2) applies only to actions merely “related to” a bankruptcy case. Without reaching the merits of Judge Ware’s decision not to abstain, we hold that the abstention provisions are inapplicable to this case. Moreover, to the extent that we are required .to construe Growers’ motion to abstain as a motion to remand, we note again that we lack appellate jurisdiction to review the district court’s decision not to remand. 1. Jurisdiction Abstention can exist only where there is a parallel proceeding in state court. That is, inherent in the concept of abstention is the presence of a pendant state, action in favor of which the federal court must, or may, abstain. See, e.g., In re S.G. Phillips Constrs., Inc., 45 F.3d 702, 708 (2d Cir.1995) (including as a requirement for mandatory abstention the presence of a previously commenced state action); In re Tucson Estates, 912 F.2d 1162, 1167 (9th Cir.1990) (recognizing as a factor for permissive abstention the presence of a related proceeding commenced in state court or other nonbankruptcy court). To require a pendant state action as a condition of abstention eliminates any confusion with 28 U.S.C. § 1452(b), which provides district courts with the authority to remand civil actions properly removed to federal court, in situations where there is no parallel proceeding. Section 1334(c) abstention should be read in pari materia with" } ]

[ { "docid": "938049", "title": "", "text": "of limitations to be applied in Kentucky. Thus, we are not limited in our choice by a desire to avoid increasing uncertainty. Other circuits have chosen common law fraud limitations periods over blue sky limitations periods. See McNeal v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888 (5th Cir. 1979); Clegg v. Conk, 507 F.2d 1351 (10th Cir. 1974), cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975); Salik, supra. However, Salik applied the common law fraud limitations period because that period had been applied before California enacted its blue sky law and the Court did not want to change the federal statute of limitations every time the state changed its law. McNeal used the common law fraud limitations period because Georgia’s Blue Sky Law was limited to an action for rescission and did not allow recovery for damages. The majority of circuits have applied blue sky law limitation periods rather than limitation periods for fraud actions to rule 10b-5 claims. See Morris v. Stifel, Nicolaus & Co., Inc., 600 F.2d 139 (8th Cir. 1979); Forrestal Village, Inc. v. Graham, 551 F.2d 411, 179 U.S.App.D.C. 225 (D.C.Cir. 1977); LaRosa Building Corp., supra; Fox, supra; Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402 (2d Cir. 1975); Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972); Vanderboom, supra. One court has applied the state blue sky law statute of limitations to a federal securities claim arising under § 17(a) of the 1933 Act. See Newman v. Prior, 518 F.2d 97 (4th Cir. 1975). Most of these cases involved defrauded purchasers, but Fox involved a defrauded seller. These courts relied upon the state blue sky laws because those laws had a common purpose with the federal securities laws, similar defenses, or similar remedies. The purpose of the federal securities laws is to substitute the philosophy of full disclosure for that of caveat emptor and thus to achieve a high standard" } ]

[ { "docid": "3279205", "title": "", "text": "a slight majority of Circuits which have ruled that in securities cases involving fraudulent dealings, the applicable statute of limitations is that in the state Blue Sky Act, rather than the statute of limitations for torts. E. g., Second Circuit, Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 409 (2d Cir. 1975); Fifth Circuit, Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1000 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); Seventh Circuit, Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125-28 (7th Cir. 1972); Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1294-95 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976), and LaRosa Building Corporation v. Equitable Life Assurance Society of the United States, 542 F.2d 990, 991-93 (7th Cir. 1976); and Eighth Circuit, Vanderboom v. Sexton, 422 F.2d 1233, 1236-39 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970), and In re Alodex Corpora tion Securities Litigation, 533 F.2d 372, 373-74 (8th Cir. 1976). A slight minority of the circuits have held that the applicable statute of limitations is that for commonlaw fraud. E. g., Sixth Circuit, IDS Progressive Funds, Inc. v. First of Michigan Corp., 533 F.2d 340, 342-44 (6th Cir. 1976); Ninth Circuit, United California Bank v. Salik, 481 F.2d 1012, 1014-15 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973); Tenth Circuit, Clegg v. Conk, 507 F.2d 1351, 1353 (10th Cir. 1974), cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975). . The period surrounding December 30, 1974 is the latest conceivable date by which plaintiff first could have learned of her claims; presumably she knew of them at an earlier date since she knew enough to seek the advice of counsel. . See note 5 supra. . The one exception seems to be Monheit v. Carter, 376 F.Supp. 334 (S.D.N.Y.1974), in which the court stated: Section 36(a) authorizes an action by the SEC, not by private individuals. Although this should not" }, { "docid": "18318037", "title": "", "text": "of Columbia Circuits have, in recent cases, consistently utilized the Blue Sky statute of limitations in determining whether a 10b-5 action is timely. See O’Hara v. Kovens, 625 F.2d 15, 19 (C.A.4, 1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Fox v. Kane Miller Corp., 542 F.2d 915, 918 (C.A.4, 1976); Cahill v. Ernst & Ernst, 625 F.2d 151, 156 (C.A.7, 1980); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125 (C.A.7, 1972); Morris v. Stifel, Nicolaus & Co., Inc., 600 F.2d 139, 146 (C.A.8, 1979); Vanderboom v. Sexton, 422 F.2d 1233, 1236 (C.A.8), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Forrestal Village, Inc. v. Graham, 551 F.2d 411, 413 (C.A.D.C.1977). These decisions have stressed the commonality of purpose between the Blue Sky law and Rule 10b-5, observing that both state and federal provisions evince the same fundamental design of implementing a policy of full disclosure. See Morris v. Stifel, Nicolaus & Co., Inc., supra, 600 F.2d at 143. The remaining circuits which have considered this issue, the Second, Third, Fifth and Sixth Circuits, have selected the appropriate state statute of limitations on a more ad hoc basis, first determining which state cause of action is most analogous to the contours of the 10b-5 claim alleged in the complaint and then applying the limitations period pertaining to that action. See e. g., Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 409 (C.A.2, 1975); Biggans v. Bache Halsey Stuart Shields, Inc., 638 F.2d 605, 610 (C.A.3,1980); Wood v. Combustion Engineering, Inc., 643 F.2d 339, 346 (C.A.5, 1981); Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1000 (C.A.5, 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); Carothers v. Rice, 633 F.2d 7, 14-15 (C.A.6, 1980); I.D.S. Progressive Funds, Inc. v. First of Michigan Corp., 533 F.2d 340, 342 (C.A.6,1976). The Court has found two decisions of the Third Circuit which have addressed in depth the appropriate limitations period to apply in federal securities suits. In the first case, Roberts v. Magnetic Metals Co.," }, { "docid": "18318036", "title": "", "text": "the timeliness of 10b-5 actions, Wachovia Bank and Trust Co. v. Nat’l Student Marketing Corp., 650 F.2d 342, 346 (C.A.D.C.1980); Bohem v. Butcher & Singer, supra, 427 F.Supp. at 356, and at least two courts of appeals, the Ninth and Tenth Circuits, have continued to adhere to this practice. See United California Bank v. Salik, 481 F.2d 1012 (C.A.9), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973); Williams v. Sinclair, 529 F.2d 1383 (C.A.9,1975), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); Clegg v. Conk, 507 F.2d 1351 (C.A.10, 1974), cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975). During the last decade, however, with the advent of state Blue Sky laws more closely mirroring the federal securities acts, the other circuits have moved toward greater application of the Blue Sky limitations period. Wachovia Bank and Trust Co. v. Nat’l Student Marketing Corp., supra, 650 F.2d at 346; Bohem v. Butcher & Singer, supra, 427 F.Supp. at 356. The Fourth, Seventh, Eighth, and District of Columbia Circuits have, in recent cases, consistently utilized the Blue Sky statute of limitations in determining whether a 10b-5 action is timely. See O’Hara v. Kovens, 625 F.2d 15, 19 (C.A.4, 1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Fox v. Kane Miller Corp., 542 F.2d 915, 918 (C.A.4, 1976); Cahill v. Ernst & Ernst, 625 F.2d 151, 156 (C.A.7, 1980); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125 (C.A.7, 1972); Morris v. Stifel, Nicolaus & Co., Inc., 600 F.2d 139, 146 (C.A.8, 1979); Vanderboom v. Sexton, 422 F.2d 1233, 1236 (C.A.8), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Forrestal Village, Inc. v. Graham, 551 F.2d 411, 413 (C.A.D.C.1977). These decisions have stressed the commonality of purpose between the Blue Sky law and Rule 10b-5, observing that both state and federal provisions evince the same fundamental design of implementing a policy of full disclosure. See Morris v. Stifel, Nicolaus & Co., Inc., supra, 600 F.2d at 143. The remaining circuits which have" }, { "docid": "17612544", "title": "", "text": "between applying the six year Michi gan limitation for general fraud and the two year limitation in the state blue sky law. The plaintiff alleged fraudulent misrepresentation in .violation of § 10 of the 1934 Act. We held that the six year limitation for fraud would best promote federal policy because the Michigan statute did not contain a provision similar to 10(b). Most recently in IDS Progressive Fund, Inc. v. First of Michigan Corp., 533 F.2d 340 (6th Cir. 1976), we rejected the contention that we ought to apply the new Michigan blue sky limitation contained in the Uniform Securities Act, which was adopted in place of the earlier blue sky law considered in Charney. We held that “[f]or us to change the applicable limitation period without good cause would add an unnecessary uncertainty to the prosecution of federal claims under Section 10(b).” 533 F.2d 343. Additionally, we observed that “ ‘the broad remedial purposes of the federal securities laws are best served by a longer, not a shorter statute of limitations.’ ” 533 F.2d 344, quoting United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973). Although we have not applied a state blue sky limitation in any of the cases before us, we are aware that other circuits have applied similar blue sky limitations periods in fraud cases based upon 10b-5, and sections 10(b) and 17(a). Newman v. Prior, 518 F.2d 97 (4th Cir. 1975), Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975), Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). In each of these cases, the court determined that the state blue sky law closely resembled the federal securities provisions. For example, in Parrent, the Seventh Circuit observed that the state blue sky law had a purpose similar to the 10b-5’s purpose “of protecting" }, { "docid": "21042980", "title": "", "text": "Securities Act provides a cause of action. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 124-28 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233, 1236-41 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); see Newman v. Prior, 518 F.2d 97, 98-100 (4th Cir. 1975). Since the state law relied upon afforded the complainant a cause of action the adoption of the state policy of repose applicable to that cause of action was arguably correct. The defendants also rely on Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 999-1000 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975) and Schaefer v. First National Bank of Lincoln-wood, 509 F.2d 1287, 1293-95 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976). In these cases the court applied the state statute of limitations applicable to a state statutory cause of action, not the Uniform Securities Act, which largely paralleled section 10(b) and Rule 10b-5. There is no such New Jersey statute applicable to sellers. Finally, the defendants rely on cases in which the court rejected a short state statute of limitations applicable to common law fraud actions in favor of a longer state statute of limitations applicable to securities law suits on the theory that adoption of the longer of two arguably applicable state statutes best effectuated the policies of the federal securities law. Dupuy v. Dupuy, 551 F.2d 1005, 1023-24 n. 31 (5th Cir. 1977); Berry Petroleum Company v. Adams & Peck, 518 F.2d 402, 406-09 (2d Cir. 1975) (applying Texas law). Certainly, cases based upon that principle can offer no support for a decision choosing a shorter period from a statute entirely inapplicable to the underlying transactions. One case cited by defendants does support the district court’s result. In Fox v. Kane-Miller Corp., 542 F.2d 915 (4th Cir. 1976), the Court applied the two-year limitation period of section 410 of the Uniform Securities Act, to a section 10(b) action brought by a seller, rather than a buyer. We find Fox unpersuasive," }, { "docid": "3279204", "title": "", "text": "securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in. order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. . This statute was recently repealed by Conn. Pub.Act 77 — 482, § 21. However, § 36-346(e), effective from July 1, 1967, to October 1, 1977, governs in the instant case. See Bohun v. Kinasz, 124 Conn. 543, 547, 200 A. 1015 (1938) (statute of limitations in effect at time of filing controls). Moreover, it is interesting to note that the new statute of limitations, Conn. Pub.Act 77-482, § 30(e), retains the same language and time frame as in Conn.Gen.Stat. § 36-346(e). . Connecticut’s position conforms with that of a slight majority of Circuits which have ruled that in securities cases involving fraudulent dealings, the applicable statute of limitations is that in the state Blue Sky Act, rather than the statute of limitations for torts. E. g., Second Circuit, Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 409 (2d Cir. 1975); Fifth Circuit, Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1000 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); Seventh Circuit, Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125-28 (7th Cir. 1972); Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1294-95 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976), and LaRosa Building Corporation v. Equitable Life Assurance Society of the United States, 542 F.2d 990, 991-93 (7th Cir. 1976); and Eighth Circuit, Vanderboom v. Sexton, 422 F.2d 1233, 1236-39 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970), and In re Alodex Corpora tion Securities Litigation, 533" }, { "docid": "6284618", "title": "", "text": "Cir. 1978); Nortek, Inc. v. Alexander Grant & Co., 532 F.2d 1013, 1015 (5th Cir.), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1976); Newman v. Prior, 518 F.2d 97, 99 (4th Cir. 1975); Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 406 (2d Cir. 1975); Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1294, (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976); Douglass v. Glenn E. Hinton Invest- meats, Inc., 440 F.2d 912, 914 (9th Cir. 1971); Vanderboom v. Sexton, 422 F.2d 1233, 1236-37 (8th Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); see Note, The Defective Private Offering: A Comparison of Purchasers’ Remedies, 62 Iowa L.Rev. 236, 265-66 (1976). In Vanderboom v. Sexton, supra, this Court adopted the standard set forth in Charney v. Thomas, 372 F.2d 97, 100 (6th Cir. 1967) for determining which of the various local periods of limitation to utilize for Rule 10b-5 actions. We stated that the appropriate statute should be the “one which best effectuates the federal policy at issue.” Vanderboom v. Sexton, 422 F.2d at 1237; see Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 999 (5th Cir.), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1974); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125 (7th Cir. 1972). In the cases on appeal there are two competing local statutes of limitations, each of which arguably “best effectuates the federal policy at issue.” One is section 516.120, which governs, inter alia, common law fraud and provides for a five-year period of limitations; the other is section 409.411 of the Missouri blue sky statute, providing for a two-year limitations period. To the extent resolution of the issue involves questions of local law, we have given the district court’s views the weight they are entitled to. In re Alodex Corporation Securities Litigation, 533 F.2d 372, 374 (8th Cir. 1976). The question of whether Missouri’s blue sky or fraud period of limitations should apply to Rule 10b-5 actions commenced" }, { "docid": "802180", "title": "", "text": "provides that “[a] person may not sue under this section one year after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence.” Section 5-101 provides that “[a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” . In the 1933 Act, liability sections having their own limitations periods include sections 11, 12 and 15 which are governed by section 13. 15 U.S.C. §§ 77k, 771, 77m and 77o. Sections 9(e), 18, and 29(b) of the 1934 Act, 15 U.S.C. §§ 78i(e), 78r, and 78cc, contain their own limitations periods. . See, e. g., Errion v. Connell, 236 F.2d 447 (9th Cir. 1956); Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951); Chiodo v. General Waterworks Corp., 380 F.2d 860 (10th Cir.), cert. denied, 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599 (1967); Azalea Meats, Inc. v. Muscat, 386 F.2d 5 (5th Cir. 1967); Klein v. Auchincloss, Parker & Redpath, 436 F.2d 339 (2d Cir. 1971); Sackett v. Beaman, 399 F.2d 884 (9th Cir. 1968). . See, e. g., Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir.), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1974); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Nickels v. Koehler Management Corp., 392 F.Supp. 804 (N.D.Ohio 1975), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977); Kramer v. Loewi & Co., Inc., 357 F.Supp. 83 (E.D.Wis.1973), overruled on other grounds, 454 F.Supp. 899, 911 n.4 (E.D.Wis.l97S5; Corey v. Bache & Co., Inc., 355 F.Supp. 1123 (S.D.W. Va.1973). . See, e. g., Forrestal Village, Inc. v. Graham, 179 U.S.App.D.C. 225, 551 F.2d 411 (1977); Fox v. Kane-Miller Corp., 542 F.2d 915 (4th Cir. 1976); Newman v. Prior, 518 F.2d 97, 100" }, { "docid": "6284617", "title": "", "text": "December 1976. Similarly, Morris brought her action in July 1977, although her cause of action commenced to run in July 1974. The only issue presented on appeal is whether the district court properly applied the two-year blue sky limitations period contained in section 409.411 to appellants’ federal securities claims, or whether the court should have instead applied the five-year period provided in section 516.120 for common law fraud. We note that a motion for summary judgment is an appropriate method for raising a statute of limitations defense, Kern v. Tri-State Ins. Co., 386 F.2d 754, 756-57 (8th Cir. 1968), and that the moving party (Stifel) bears the burden to establish that there is no genuine issue of material fact. Rule 56(c), F.R.Civ.P. I. The technique of looking to state law to determine the timeliness of a federal cause of action has been uniformly and consistently employed by the federal judiciary in the context of securities actions when no federal limitations period is provided. See, e. g., Gaudin v. KDI Corp., 576 F.2d 708, 711 (6th Cir. 1978); Nortek, Inc. v. Alexander Grant & Co., 532 F.2d 1013, 1015 (5th Cir.), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1976); Newman v. Prior, 518 F.2d 97, 99 (4th Cir. 1975); Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 406 (2d Cir. 1975); Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1294, (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976); Douglass v. Glenn E. Hinton Invest- meats, Inc., 440 F.2d 912, 914 (9th Cir. 1971); Vanderboom v. Sexton, 422 F.2d 1233, 1236-37 (8th Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); see Note, The Defective Private Offering: A Comparison of Purchasers’ Remedies, 62 Iowa L.Rev. 236, 265-66 (1976). In Vanderboom v. Sexton, supra, this Court adopted the standard set forth in Charney v. Thomas, 372 F.2d 97, 100 (6th Cir. 1967) for determining which of the various local periods of limitation to utilize for Rule 10b-5 actions. We stated that the appropriate" }, { "docid": "21042979", "title": "", "text": "1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1971); Charney v. Thomas, 372 F.2d 97, 99-100 (6th Cir. 1967); Fratt v. Robinson, 203 F.2d 627, 634-35 (9th Cir. 1953); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2d Cir. 1951); Jerome v. Ampre Corp. [1978 Transfer Binder] Fed. Sec.L.Rep. (CCH) ¶ 96,343 (D.N.J.1978); Klapmeir v. Peat Marwick, Mitchell & Co., 363 F.Supp. 1212, 1217-18 (D.Mich.1973); Connelly v. Balkwill, 174 F.Supp. 49, 63-64 (N.D.Ohio 1959), aff’d per curiam, 279 F.2d 685 (6th Cir. 1960); Tobacco & Allied Stocks, Inc. v. Transameriea Corp., 143 F.Supp. 323, 327-28 (D.Del.1956), aff’d, 244 F.2d 902 (3d Cir. 1957). See also Janigan v. Taylor, 344 F.2d 781, 783 (1st Cir. 1965), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). We find the reasoning of these cases persuasive. In opposition the defendants invoke several cases in which federal courts have looked to the time-bar of the forum state’s Uniform Securities Act. In some of these cases the plaintiff was a buyer to whom section 410 of the Uniform Securities Act provides a cause of action. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 124-28 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233, 1236-41 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); see Newman v. Prior, 518 F.2d 97, 98-100 (4th Cir. 1975). Since the state law relied upon afforded the complainant a cause of action the adoption of the state policy of repose applicable to that cause of action was arguably correct. The defendants also rely on Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 999-1000 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975) and Schaefer v. First National Bank of Lincoln-wood, 509 F.2d 1287, 1293-95 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976). In these cases the court applied the state statute of limitations applicable to a state statutory cause of action, not the Uniform Securities Act, which largely paralleled section 10(b) and Rule 10b-5. There is no such" }, { "docid": "18318033", "title": "", "text": "length of the limitations period applicable to the 10b-5 claims. Although the federal securities laws contain explicit limitations provisions for those sections which expressly create civil remedies, see e.g., § 13 of Securities Act, 15 U.S.C. § 77m; §§ 9 and 18 of Exchange Act, 15 U.S.C. §§ 78i, 78r, there is no statute of limitations for implied causes of action brought under Rule 10b-5. Bohem v. Butcher & Singer, 427 F.Supp. 355, 356 (E.D.Pa.1977). Moreover, federal law does not prescribe any general statute of limitations for civil actions. Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 999 (C.A.5, 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975). Consequently, in the absence of any readily discernible federal source from which to craft an appropriate limitations period, the courts have long measured the timeliness of Rule 10b-5 claims by reference to state law, see United Parcel Service, Inc. v. Mitchell, --- U.S. ---, ---, 101 S.Ct. 1559, 1562, 67 L.Ed.2d 732 (1981); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210 n.29, 96 S.Ct. 1375, 1389 n.29, 47 L.Ed.2d 668 (1976); United Auto Workers v. Hossier Cardinal Corp., 383 U.S. 696, 703-704, 86 S.Ct. 1107, 1111-1112, 16 L.Ed.2d 192 (1966); Kubik v. Goldfield, 479 F.2d 472, 477 n.12 (C.A.3, 1973), and have applied the state statute of limitations which best effectuates the policies advanced by Rule 10b-5. See Biggans v. Bache Halsey Stuart Shields, 638 F.2d 605, 608 (C.A.3, 1980); Charney v. Thomas, 372 F.2d 97, 100 (C.A.6, 1967). In making this determination, the courts often look to the state cause of action which bears the closest substantive resemblance to Rule 10b-5 and apply the limitations provision applicable to that action. See Vanderboom v. Sexton, 422 F.2d 1233, 1237-38 (C.A.8), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Hudak v. Economic Research Analysts, Inc., supra, 499 F.2d at 999. As the present case makes clear, in selecting which limitations provision to apply, the courts generally are confronted with only two alternatives — the Blue Sky limitations period or the period for common" }, { "docid": "2239094", "title": "", "text": "Securities Act two-year statute of limitation to an action under Section 10(b) of the 1934 Act: “This is the proper statute of limitations to apply since Section 881(1)(B) bears the closest resemblance to the federal cause of action under Rule 10(b) — (5). .. . ” Dyer v. Eastern Trust & Banking Co., 336 F.Supp. 890, 906 (D.Me., 1971). Accord, First Federal Savings & Loan Ass’n. of Miami v. Mortgage Corp., 650 F.2d 1376 (5 Cir., 1981); Morris v. Stifel, Nicolaus & Co., 600 F.2d 139 (8 Cir., 1979); Forrestal Village, Inc. v. Graham, 551 F.2d 411 (D.C.Cir., 1977); Fox v. Kane-Miller Corp., 542 F.2d 915 (4 Cir., 1976); In re Alodex Corp. Secu rities Litigation, 533 F.2d 372 (8 Cir., 1976); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7 Cir., 1972); Vanderboom v. Sexton, 422 F.2d 1233, 1240 (8 Cir., 1970), cert. denied 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). See Hill v. Der, 521 F.Supp. 1370, 1379-85 (D.Del., 1981); Bohem v. Butcher & Singer, 427 F.Supp. 355 (E.D.Pa., 1977). Even as to state Blue Sky laws not based on the Uniform Securities Act, other courts have found persuasive that such statutes prohibit the same conduct, i.e., fraud in securities transactions. E.g., Carothers v. Rice, 633 F.2d 7 (6 Cir., 1980), cert. denied 450 U.S. 998, 101 S.Ct. 1702, 68 L.Ed.2d 199 (1981); O’Hara v. Kovens, 625 F.2d 15 (4 Cir., 1980), cert. denied 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 409 (2 Cir., 1975); Schaefer v. First Nat'l Bank of Lincolnwood, 509 F.2d 1287 (7 Cir., 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976); Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5 Cir., 1974), cert. denied 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); McNeal v. Paine, Webber, Jackson, & Curtis, Inc., 429 F.Supp. 359, 362-63 (N.D.Ga., 1977). An additional reason for using the Section 890 limitations period is that Section 890’s “limitation is also closer to the express limitation periods" }, { "docid": "3423820", "title": "", "text": "No. 12998 (N.D.Ga.1972), it was held that the Georgia fraud statute of limitations period of four years was applicable to rule 10b-5 actions. The defendants, however, urge this court to abandon these holdings and instead apply the shorter Georgia blue sky law limitation period. In light of a recent decision by the Fifth Circuit in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), this court feels compelled to reexamine the question. The standard for determining which period of limitation to apply is that it should be “one which best effectuates the federal policy at issue.” Charney v. Thomas, 372 F.2d 97, 100 (6th Cir. 1967). The more recent decisions favoring the blue sky limitation period have utilized a “resemblance test” in adopting a period of limitations. See Einhorn & Feldman, Choosing A Statute of Limitations In Federal Securities Actions, 25 Mercer L.Rev. 497, 503 (1974). Thus, a recent decision in the Seventh Circuit, Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), found the Illinois three-year blue sky limitation period applicable, rather than the fraud limitation, because of the resemblance in language and purpose between rule 10b-5 and the blue sky laws. Likewise, other courts have reached a similar conclusion. See, e. g., Vanderboom v. Sexton, 422 F.2d 1233 ( 8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Corey v. Bache & Co., 355 F.Supp. 1123 (S.D.W.Va.1973); Josef’s of Palm Beach, Inc. v. Southern Investment Co., 349 F.Supp. 1057 (S.D.Fla.1972); Richardson v. Salinas, 336 F.Supp. 997 (S.D.Tex.1972). But see United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973). The “resemblance test” was adopted by the Fifth Circuit in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974). Hudak involved a claim against a registered broker/dealer under section 10(b) of the Securities Exchange Act. The district court measured the timeliness of plaintiff’s suit against the three-year period provided by Florida statutes in “action [s] for relief on the ground of fraud.” Fla.Stat." }, { "docid": "802181", "title": "", "text": "Inc. v. Muscat, 386 F.2d 5 (5th Cir. 1967); Klein v. Auchincloss, Parker & Redpath, 436 F.2d 339 (2d Cir. 1971); Sackett v. Beaman, 399 F.2d 884 (9th Cir. 1968). . See, e. g., Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir.), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1974); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Nickels v. Koehler Management Corp., 392 F.Supp. 804 (N.D.Ohio 1975), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977); Kramer v. Loewi & Co., Inc., 357 F.Supp. 83 (E.D.Wis.1973), overruled on other grounds, 454 F.Supp. 899, 911 n.4 (E.D.Wis.l97S5; Corey v. Bache & Co., Inc., 355 F.Supp. 1123 (S.D.W. Va.1973). . See, e. g., Forrestal Village, Inc. v. Graham, 179 U.S.App.D.C. 225, 551 F.2d 411 (1977); Fox v. Kane-Miller Corp., 542 F.2d 915 (4th Cir. 1976); Newman v. Prior, 518 F.2d 97, 100 (4th Cir. 1975) (federal policy best served by applying state blue sky law’s two-year statute of limitations to suit involving fraudulent sale of securities); Sasso v. Koehler, 445 F.Supp. 762 (D.Md.1978); Maine v. Leonard, 365 F.Supp. 1277 (W.D.Va.1973). . This result obviously imposes a shorter limitations period, absent any equitable tolling, than would apply in the case of common law fraud. But as one authority has noted, “[s]hort statutes of limitations with an outside cut-off date are particularly appropriate in the case of securities or other fungibles of fluctuating value.” Martin, Statutes of Limitation in 10b-5 Actions: Which State Statute is Applicable? 29 Bus.Law. 443 (1974). Although writing pri- or to the Supreme Court’s Ernst decision, Martin notes that the presence or absence of scienter is essentially irrelevant to the nature of the limitations question: Despite differing approaches among the courts to such questions as scienter and reliance, it is universally true that in order to establish the civil liability which has been implied under section 10(b) and rule 10b-5, it is not necessary to" }, { "docid": "2239093", "title": "", "text": "The federal policy of preventing fraud in securities transactions is the very same purpose that is effectuated by Section 890. Because of that identity of purpose between state Blue Sky laws and the federal securities laws, “during the last decade, the law has moved toward application of the blue sky law limitations period”. Wachovia Bank & Trust Co. v. National Student Marketing Corp., 650 F.2d 342, 346 (D.C.Cir., 1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3098, 69 L.Ed.2d 965 (1981). Indeed, many of those state Blue Sky laws are, like Puerto Rico’s, based on the Uniform Securities Act and contain the same two-year limitation period as Section 890. Thus, the Virginia Uniform Securities Act limitation period was applied by the Court of Appeals in Newman v. Prior, 518 F.2d 97, 100 (4 Cir., 1975): “(F)ederal policy is best served by applying the state blue sky’s two-year statute of limitations to a suit involving the fraudulent sale of securities.” Similarly, the U. S. District Court for the District of Maine, has applied the Maine Uniform Securities Act two-year statute of limitation to an action under Section 10(b) of the 1934 Act: “This is the proper statute of limitations to apply since Section 881(1)(B) bears the closest resemblance to the federal cause of action under Rule 10(b) — (5). .. . ” Dyer v. Eastern Trust & Banking Co., 336 F.Supp. 890, 906 (D.Me., 1971). Accord, First Federal Savings & Loan Ass’n. of Miami v. Mortgage Corp., 650 F.2d 1376 (5 Cir., 1981); Morris v. Stifel, Nicolaus & Co., 600 F.2d 139 (8 Cir., 1979); Forrestal Village, Inc. v. Graham, 551 F.2d 411 (D.C.Cir., 1977); Fox v. Kane-Miller Corp., 542 F.2d 915 (4 Cir., 1976); In re Alodex Corp. Secu rities Litigation, 533 F.2d 372 (8 Cir., 1976); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7 Cir., 1972); Vanderboom v. Sexton, 422 F.2d 1233, 1240 (8 Cir., 1970), cert. denied 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). See Hill v. Der, 521 F.Supp. 1370, 1379-85 (D.Del., 1981); Bohem v. Butcher & Singer, 427 F.Supp. 355 (E.D.Pa.," }, { "docid": "17612545", "title": "", "text": "344, quoting United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973). Although we have not applied a state blue sky limitation in any of the cases before us, we are aware that other circuits have applied similar blue sky limitations periods in fraud cases based upon 10b-5, and sections 10(b) and 17(a). Newman v. Prior, 518 F.2d 97 (4th Cir. 1975), Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975), Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). In each of these cases, the court determined that the state blue sky law closely resembled the federal securities provisions. For example, in Parrent, the Seventh Circuit observed that the state blue sky law had a purpose similar to the 10b-5’s purpose “of protecting the ‘uninformed, the ignorant, the gullible.’ ” 455 F.2d 126. The court determined, “Except for the interstate elements in 10b-5, Section 12 of the Illinois Securities Law . . . covers the same violations as 10b-6.” 455 F.2d 127. [Emphasis added.] The court found it important that section 137.12 “so closely parallels 10b-5,” and it concluded that the adoption of this section would best effectuate the federal policies in the suit. Similarly, in Hudak, the Fifth Circuit observed that “the present hesitant growth of the Florida blue sky law accurately tracks the development of federal securities regulation in this Circuit.” 499 F.2d 1000. Most recently in Newman the court found that “[b]oth the state statute and [617(a)] proscribe the same conduct.” 518 F.2d 100. The defendants in this consolidated appeal present several arguments for the application of periods of limitation that would bar plaintiffs’ claims. First, they urge that we should fashion a uniform statute of limitations of one year from discovery, up to a maximum of three years, based upon the sections of the" }, { "docid": "2239095", "title": "", "text": "1977). Even as to state Blue Sky laws not based on the Uniform Securities Act, other courts have found persuasive that such statutes prohibit the same conduct, i.e., fraud in securities transactions. E.g., Carothers v. Rice, 633 F.2d 7 (6 Cir., 1980), cert. denied 450 U.S. 998, 101 S.Ct. 1702, 68 L.Ed.2d 199 (1981); O’Hara v. Kovens, 625 F.2d 15 (4 Cir., 1980), cert. denied 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 409 (2 Cir., 1975); Schaefer v. First Nat'l Bank of Lincolnwood, 509 F.2d 1287 (7 Cir., 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1682, 48 L.Ed.2d 186 (1976); Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5 Cir., 1974), cert. denied 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); McNeal v. Paine, Webber, Jackson, & Curtis, Inc., 429 F.Supp. 359, 362-63 (N.D.Ga., 1977). An additional reason for using the Section 890 limitations period is that Section 890’s “limitation is also closer to the express limitation periods in the various sections of the federal act.. . ”. Parrent v. Midwest Rug Mills, Inc., 455 F.2d, at 127. Accord, Cahill v. Ernst & Ernst, 625 F.2d 151 (7 Cir., 1980). Civil actions under Sections 11 and 12(2) of the 1933 Act must be brought “within one year after the discovery of the untrue statement or the omission” and in no event more than three years after the offer or sale. 15 U.S.C. 77m (1976). Sections 9, 18 and 29(b) of the 1934 Act have identical limitations. Id. 78i(e), 78r(c), 78cc(b). Actions under Section 16(b) of the 1934 Act are limited absolutely to two years after the event. Id. 78p. It is therefore clear that “Congress has not favored long limitations in private civil suits under the securities laws”. Newman v. Prior, 518 F.2d, at 100 n.4. Although the two-year limitations period of Puerto Rico’s Blue Sky statute is applicable to the plaintiffs’ federal securities claims, the provisions of that statute relating to when the period starts to run, i.e., from “the contract of" }, { "docid": "3030805", "title": "", "text": "or would operate as a fraud or deceit upon any person. . In addition to the Seventh Circuit cases, see, for example, Forrestal Village, Inc. v. Graham, 551 F.2d 411, 413 (D.C.Cir. 1977); Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 406-09 (2d Cir. 1975); Fox v. Kane-Miller Corp., 542 F.2d 915, 917-18 (4th Cir. 1976); Dupuy v. Dupuy, 551 F.2d 1005, 1023-24 n. 31 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977); Morris v. Stifei, Nicolaus & Co., 600 F.2d 139 (8th Cir. 1979). . See, for example, Nickels v. Koehler Management Corp., 541 F.2d 611 (6th Cir. 1976), cert. denied, 429 U.S. 1074 (1977); United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414'U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973); Clegg v. Conk, 507 F.2d 1351 (10th Cir. 1974). See also McNeal v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888 (5th Cir. 1979). . Section 893.19(7) of the Wisconsin Statutes provides: Within 6 years: (7) An action for relief on the ground of fraud. The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud. . Section 893.19(4) of the Wisconsin Statutes provides: Within 6 years: 4: * * * 4: * (4) An action upon a liability created by statute when a different limitation is not prescribed by law. . Bernhardt v. Polygraphic Co., 350 U.S. 198, 204-05, 76 S.Ct. 273, 276-77, 100 L.Ed. 199 (1956); Buehler Corp. v. Home Insurance Co., 495 F.2d 1211, 1214 (7th Cir. 1974); 1A Moore’s Federal Practice \" 0.309[2], page 3125. Chief Judge John W. Reynolds, prior to his 15 years on the federal bench at Milwaukee was both the Attorney General and the Governor of Wisconsin. Judge Robert W. Warren, prior to his 6 years on the federal bench, was the Attorney General of Wisconsin. The Parrent case was decided in 1972. The Kramer case, following the Parrent analysis in a Wisconsin forum, was decided in 1973. PELL, Circuit Judge," }, { "docid": "6386867", "title": "", "text": "sky law.” Pub.L. No. 88-503, § 14, 78 Stat. 620, 629, 2 D.C.Code § 2413 (1973). That section creates a civil cause of action in favor of a purchaser of securities sold by means of a materially false or misleading statement or by means of statements containing material omissions and establishes a two-year period of limitation for such an action. We join the majority of circuits which have considered this question of the applicable statute of limitations in actions brought under Section 17(a) or 10(b) and hold that the local blue sky law limitation best effectuates the federal policy. See, e. g., Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402 (2d Cir. 1975); Newman v. Prior, 518 F.2d 97 (4th Cir. 1975); Hudak v. Economic Research Analysts, Inc., supra; Parrent v. Midwest Rug Mills, Inc., supra; Cole v. Alodex Corp., 533 F.2d 372 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert, denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). We adopt the reasoning of the Eighth Circuit in Vanderboom and decline to follow the minority of circuits which have applied local statutes of limitations that govern fraud actions generally. Charney v. Thomas, supra; United California Bank v. Salik, 481 F.2d 1012 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973); Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90 (10th Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1971). In Vanderboom the Eighth Circuit rejected a general fraud statute of limitations and adopted the two-year statute of limitations contained in the Arkansas blue sky law. The court noted that the state blue sky law “deals expressly with the sale of securities,” 422 F.2d at 1237, and — though the blue sky provision in question is not identical to Section 10(b) or Rule 10b-5 — it resembles those federal provisions more closely than it does the necessary elements of common law fraud. Vanderboom is especially instructive here since the pertinent provisions of the Arkansas blue sky law bear a close resemblance to the" }, { "docid": "6386866", "title": "", "text": "cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975). The basic standard for determining which of the local periods of limitation to utilize is the one that “best effectuates the federal policy involved.” See, e. g., Hudak v. Economic Research Analysts, Inc., supra, 499 F.2d at 999; Par-rent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125 (7th Cir. 1972); Charney v. Thomas, 372 F.2d 97, 99-100 (6th Cir. 1967). In choosing the District of Columbia statute that “best effectuates the federal policy” expressed in Sections 17(a) and 10(b), there are — -as each party here acknowledges — only two alternatives. The first alternative, and the one which Forrestal urges, is the three-year District of Columbia statute of limitations that governs, along with other causes of action, common law fraud actions generally. Pub.L. No. 88-241, 77 Stat. 509, 12 D.C.Code § 301(8) (1973). The second alternative, and the one which appellees urged successfully before the District Court, is Section 14 of the District of Columbia Securities Act of 1964, the local “blue sky law.” Pub.L. No. 88-503, § 14, 78 Stat. 620, 629, 2 D.C.Code § 2413 (1973). That section creates a civil cause of action in favor of a purchaser of securities sold by means of a materially false or misleading statement or by means of statements containing material omissions and establishes a two-year period of limitation for such an action. We join the majority of circuits which have considered this question of the applicable statute of limitations in actions brought under Section 17(a) or 10(b) and hold that the local blue sky law limitation best effectuates the federal policy. See, e. g., Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402 (2d Cir. 1975); Newman v. Prior, 518 F.2d 97 (4th Cir. 1975); Hudak v. Economic Research Analysts, Inc., supra; Parrent v. Midwest Rug Mills, Inc., supra; Cole v. Alodex Corp., 533 F.2d 372 (7th Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert, denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). We adopt the reasoning of the Eighth" } ]

[ { "docid": "10974361", "title": "", "text": "C.C.P.A. (Customs) 194, C.A.D. 593; United States v. Fisher Scientific Co., 44 C.C.P.A. (Customs) 122, C.A.D. 648; and United States v. Baar & Beards, Inc., 46 C.C.PA. (Customs) 92, C.A.D. 705, counsel for appellant contends that plaintiff’s collective exhibit 1 contains statements of the witness which are mere conclusions of ultimate issuable facts, lacking in probative value. Appellant challenges the entire document as devoid of evidentiary facts to establish whether or not sales or offers for sale to the various customers were made in the ordinary course of trade, and in the usual wholesale quantities, or to support the conclusion that prices charged the customers were not uniform. It is argued that without primary evidence of sales, in the form of invoices, or an itemized list of purchasers with the quantities bought and the prices paid, there are no facts to support the opinion of the affiant that no single price existed in the wholesale marketing of such merchandise. It is further urged that where pricelists serve as bases for calculating prices at which sales are made, it is immaterial that such lists are private, and not circulated throughout the trade. They are, nevertheless, indicia of freely offered prices and, hence, of value. We are of opinion that appellant’s position on the subject of the evidentiary value of pricelists stems from a misconception of their true function in the chain of proof of statutory market value. The mere fact that pricelists are admissible in evidence by statutory authorization (28 U.S.C. § 2633) does not necessarily clothe them with probative force. Pricelists have weight not in establishing the bona fides of their per se quotations, but in reflecting that a seller is proffering his wares to the buying public. Foreign value is defined as the price at which merchandise is freely offered for sale to all purchasers, and pricelists constitute one of several methods of showing that offers of sale are in fact made. Consequently, if they are retained as private documents, and are never seen by any purchaser, it is difficult to understand how they can be considered evidence of" } ]

[ { "docid": "13798924", "title": "", "text": "at which such merchandise is freely sold in the foreign market must necessarily be the same as the price at which it was offered for exportation to the United States, for export value to exist. It is merely that, in considering the price for exportation, the elements entering into the domestic price which are the same as those entering into the export price have a direct bearing upon whether or not the export price fairly reflects the market value of the merchandise. Indeed, we are of opinion that this is but one of only two areas of competent evidence in the instant record from which a price fairly reflective of market value can be determined. We reject as lacking in probative value both the exporter's pricelist and the witness’ statement that the prices therein quoted were the prices at which the company was willing to sell the individual sizes to any other distributor in the United States. There is no evidence in the record to show that the pricelist in question was ever circulated to any potential customers. A pricelist which is maintained for private use and is not brought to the attention of any prospective buyers is a self-serving document which lacks probative force as evidence. United States v. North American Asbestos Corp., 44 Cust. Ct. 801, A.R.D. 123, affirmed, Same v. Same, 48 CCPA 153, C.A.D. 783. We are in agreement with the trial court that, in the phrase “which fairly reflects the market value of the merchandise,” the key expression is market value, and that the following quotation from the case of United States v. Alfred Kohlberg, Inc., 2 Cust.Ct. 849, Reap.Dec. 4526, affirmed, Same v. Same, 27 CCPA 223, C.A.D. 88, is an acceptable definition thereof: “Market value has been defined as the price at which the manufacturer holds his merchandise for sale, the price at which he freely offers it in the market, and the price which he is willing to receive, and the purchasers are willing to pay, in the ordinary course of trade. See United States v. Sixteen Cases of Silk Ribbons, 27" }, { "docid": "22076760", "title": "", "text": "pricelist are in dollars per thousand square feet, c.i.f. American ports, and it appears that, so far as offer and sale of such plywood in Finland for exportation to the United States is concerned, the c.i.f. basis was the only basis upon which such merchandise was freely offered and sold. I am of the opinion that the record establishes that— * * * such * * * merchandise [was] freely offered for sale to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States * * *. but the question presented is whether the prices indicated on the said pricelist are the prices at which such merchandise was so offered as above indicated. If one were to follow literally some expressions of our appellate court in the case of United States v. Paul A. Straub & Co., Inc., 41 C.C.P.A. (Customs) 209, C.A.D. 553, one might come to the conclusion that, inasmuch as the only price at which the merchandise was freely offered for sale in Finland for exportation to the United States was a c.i.f. American ports price, the c.i.f. price, without any deductions, would represent export value for duty purposes. In that case, our appellate court said: In the case before us it is a fact that the freely offered price to all purchasers for the merchandise was on an f.o.b. Bremen basis. There is no showing that the goods could be purchased at the invoice price less freight. The unit prices for the merchandise in the instant case included the inland freight charges at the time of purchase in Selb-Stadt, and, as the appellant states, “Such inland freight is incorporated in and bound up with the cost to the seller of material and labor, and forms an integral part of the unit value and purchase price of each item. It is inseparable therefrom and is a charge in the principal market at or prior to the time of shipment, and does not accrue subsequent to the time" }, { "docid": "10974360", "title": "", "text": "“points of law” embraced the proposition that, in the absence of a single price for all purchasers, statutory foreign value does not exist, is evident from the syllabus of the court’s decision, which states the following: The concurrent findings of the tribunals below that there was no uniform price at which the firebrick here involved was freely offered for sale to all purchasers for home consumption in the usual wholesale quantities in the ordinary course of trade; that there was no foreign, export, or United States value for such or similar merchandise; and that cost of production, as defined in section 402(f), Tariff Act of 1930, was the proper basis for the determination of the value of the merchandise; is supported by substantial evidence of record. Appellant’s quarrel with, the trial court’s decision is less concerned with the principle of law applied than with the sufficiency of the evidence to invoke it. Citing the cases of Brooks Paper Co. v. United States, 40 C.C.P.A. (Customs) 38, C.A.D. 495; Kobe Import Co. v. United States, 42 C.C.P.A. (Customs) 194, C.A.D. 593; United States v. Fisher Scientific Co., 44 C.C.P.A. (Customs) 122, C.A.D. 648; and United States v. Baar & Beards, Inc., 46 C.C.PA. (Customs) 92, C.A.D. 705, counsel for appellant contends that plaintiff’s collective exhibit 1 contains statements of the witness which are mere conclusions of ultimate issuable facts, lacking in probative value. Appellant challenges the entire document as devoid of evidentiary facts to establish whether or not sales or offers for sale to the various customers were made in the ordinary course of trade, and in the usual wholesale quantities, or to support the conclusion that prices charged the customers were not uniform. It is argued that without primary evidence of sales, in the form of invoices, or an itemized list of purchasers with the quantities bought and the prices paid, there are no facts to support the opinion of the affiant that no single price existed in the wholesale marketing of such merchandise. It is further urged that where pricelists serve as bases for calculating prices at which sales" }, { "docid": "6632166", "title": "", "text": "could in no view of the law be sustained on that standard. Plaintiff tried the case and has briefed it on the theory that to prevail it must compare the invoice prices with Canadian home market prices (where Aimco is the sole producer) for such or similar merchandise, and must justify any differences shown with differences in the conditions and cost of serving the home market. A difference not so accounted for would compel me to find that plaintiff had failed -to show that the invoice prices fairly reflected market value, no other standard of measurement being available. I do not understand this to mean, however, that the home market prices must, after adjustments I approve, exactly correspond. I would be satisfied with a reasonable approximation of correspondence: this I deduce from the word “fairly.” If plaintiff fails to show such approximation, I cannot find an export value and, therefore, the appraisement based on constructed value must stand. There was a relatively small volume of sales to third countries “offshore.” These in no way help plaintiff as they were at prices higher than the Canadian bonder prices. The pricelists, exhibits 6 and 7, show, respectively, the applicable United States export and home market prices. The export prices were, in fact, during the period involved, prices to Aimco, Buffalo, only, but they would have been available to Canadian original equipment manufacturers and were offered to them. However, Aimco’s product did not meet their specifications -and no sales to them were made except a single large one to Chrysler, not in the ordinary course of business nor during the period involved. Plaintiff does not argue that offers, without sales to original equipment manufacturers, establish a market value, and, in the state of the evidence, such a measure would be too speculative to use. The actual home customers were, in fact, all “bonders” who combined plaintiff’s product with asbestos linings to make a finished brakeshoe. The excesses in the pricelist for bonders, exhibit 7, of December 20,1962, over the prices to Aimco, Buffalo, in exhibit 6, are what plaintiff undertakes to account for" }, { "docid": "5544989", "title": "", "text": "general class or kind as the involved merchandise (R. 23). The record is silent as to the normal practices of that company in the conduct of their business. Such proof is essential to establish the ordinary course of trade as that term is defined in section 402(f) (2), supra. Apparently, and, it is presumed to he so in the absence of any proof to the contrary, the conduct of the importer in its home marlcet business was the normal manner in which persons engaged in the same general class or hind of business transacted their affairs. It was proper for the Appraiser to adopt that view in considering whether or not the transactions in question satisfied the statutory requirements for a finding of export value. [Italics supplied.] In the view that we have here taken that all sales in the ordinary course of trade must be considered in ascertaining the price which fairly reflects the market value of the merchandise, it follows that evidence of the price and, hence, of the value of goods in the foreign market is relevant to the ultimate determination of the export value of imported merchandise within the purview of section 402(b) of the Tariff Act of 1930, as amended, supra, in the case of sales to selected purchasers. That is not to say, of course, that the price at which such merchandise is freely sold in the foreign market must necessarily be the same as the price at which it was offered for exportation to the United States, for export value to exist. It is merely that, in considering the price for exportation, the elements entering into the domestic price which are the same as those entering into the export price have a direct bearing upon whether or not the export price fairly reflects the market value of the merchandise. Indeed, we are of opinion that this is but one of only two areas of competent evidence in the instant record from which a price fairly reflective of market value can be determined. We reject as lacking in probative value both the exporter’s pricelist" }, { "docid": "10974358", "title": "", "text": "discount of approximately 19 per centum from said list prices, which discount did not depend upon the quantity purchased. Although Cape Asbestos did not refuse to sell other manufacturers, neither did it solicit business from any one else in that category. It also appears that since Cape Asbestos itself converted asbestos yarn into further manufactured articles, it was not especially desirous of selling the yam to any purchasers who might be likely to produce competitive manufactured products. Accordingly, and with respect to the class designated as “merchants and small consumers,” prices were charged for the yam which approximated the prices of cloth made from the same count of yam. No merchant or small consumer ever paid less' than the prices shown on the private pricelists, many paid more, the exact amount of each sale being ultimately determined by the bargaining ability of the customer. In the opinion of the trial court, the evidence contained in plaintiff’s collective exhibit 1 sufficed to establish that there was no single uniform price at which blue asbestos yarn, of the condition and quality of the imported merchandise, and manufactured by Cape Asbestos, was freely offered for sale to all purchasers in the usual wholesale quantities and in the ordinary course of trade for home consumption in England. Accordingly, it was held that foreign value for such merchandise had been successfully negated, and that the stipulated value for similar merchandise constituted the proper value of the imported yam. The principle of the trial court’s decision that lack of uniformity of price at which merchandise is offered for sale in wholesale quantities prevents the finding of foreign value finds support in the case of United States v. M. V. Jenkins et al., 26 Cust. Ct. 467, Reap. Dec. 7924, where it was said, “the statute on appraisment contemplates a single price as determinative of dutiable value.” Our appellate court, in affirming the Jenkins decision, 39 C.C.P.A. (Customs) 158, C.A.D. 479, expressly approved “the validity of the complex points of law passed upon and decided by the respective tribunals of the Customs Court.” That one of said" }, { "docid": "16727190", "title": "", "text": "after such time of exportation but before the expiration of ninety days after the importation of the merchandise undergoing appraisement. Plaintiff, in challenging the appraised value, assumes the twofold obligation of not only showing that the appraisement was erroneous, but also of establishing some other dutiable value. Kenneth Kittleson v. United States, 40 CCPA 85, C.A.D. 502. To do this, the appealing party must meet every material issue involved in the case, and, if he fails to do so, the value fixed by the appraiser remains in full force and effect. Brooks Paper Company v. United States, 40 CCPA 38, C.A D. 495. Plaintiff introduced in evidence several pricelists to substantiate the claimed values. One of these (collective exhibit 6) is a pricelist, apparently effective as of “12/5/60,” as per notation on the said pricelist. Such pricelist, promulgated and effective some time after the date of exportation of the merchandise herein involved, is not probative of any claimed values therein. Johnny Jones, Jr. v. United States, 17 Cust. Ct. 459, Reap. Dec. 6580, affirmed in United States v. Johnny Jones, Jr., 19 Cust. Ct. 303, Reap. Dec. 7434. Further, said pricelist states: “We are not to send this out, but merely quote as we receive orders.” A so-called “office” pricelist of this character, as to which evidence of circulation in the trade or of sales made in accordance with said pricelist is lacking, is not substantive proof in support of plaintiff’s claimed values. North American Asbestos Corp. v. United States, 43 Cust. Ct. 500, Reap. Dec. 9518, affirmed in United States v. North American Asbestos Corp., 44 Cust. Ct. 801, A.E.D. 123. Plaintiff contends, in effect, that the price at which such or similar merchandise was freely sold or offered for sale in the principal market of the United States for domestic consumption, packed ready for delivery, in the usual wholesale quantities, on May 21, 1960, the date of exportation, is that set forth in the pricelists offered in evidence by the plaintiff (exhibits 5 and 5-A). Although plaintiff’s witness testified that these pricelists, dated, respectively, July 22,1959, and January" }, { "docid": "13798925", "title": "", "text": "any potential customers. A pricelist which is maintained for private use and is not brought to the attention of any prospective buyers is a self-serving document which lacks probative force as evidence. United States v. North American Asbestos Corp., 44 Cust. Ct. 801, A.R.D. 123, affirmed, Same v. Same, 48 CCPA 153, C.A.D. 783. We are in agreement with the trial court that, in the phrase “which fairly reflects the market value of the merchandise,” the key expression is market value, and that the following quotation from the case of United States v. Alfred Kohlberg, Inc., 2 Cust.Ct. 849, Reap.Dec. 4526, affirmed, Same v. Same, 27 CCPA 223, C.A.D. 88, is an acceptable definition thereof: “Market value has been defined as the price at which the manufacturer holds his merchandise for sale, the price at which he freely offers it in the market, and the price which he is willing to receive, and the purchasers are willing to pay, in the ordinary course of trade. See United States v. Sixteen Cases of Silk Ribbons, 27 Fed.Cas.No.16,301, p. 1099 * * * ” Nevertheless, we adhere to the view that unsupported expressions of willingness to sell do not constitute proof of market value. Transatlantic Shipping Co., Inc. (Absorbo Beer Pad Co., Inc.) v. United States, 28 CCPA 19, C.A.D. 118. The record in the instant case does, however, establish that included in the price at which such merchandise is sold for home consumption in Canada were certain selling expenses which were not incurred in export transactions; that the export price differs from the domestic price only to the extent of the value of said expenses; and that the 30 per cen-tum deduction fairly represents the savings in cost effected by the elimination of the several items comprising selling expenses. It also establishes that the invoice prices were equal to the sum of the production costs, general expenses entering into export transactions and profit, and that such prices fairly reflected the market value for exportation to the United States. This we consider to be substantial evidence of a price which embodies all" }, { "docid": "5605414", "title": "", "text": "dollar prices. It is conceded that the sterling and dollar list prices were adjusted approximately to equivalency by the respective discounts that were quoted in the two pricelists. There were also pricelists, with prices likewise quoted in sterling and in dollars, for certain special fishhooks that Sealey manufactured to specification for two of its United States customers; but since the special fishhooks are not involved in this litigation, there is no need to consider the pricelists for the special merchandise. The proofs of record show that, except in Western United States, sales of the stock fishhooks to American customers were made to wholesalers and manufacturers at list prices adjusted by the quoted discounts. In the West, there was a different sales arrangement. There, Sealey had two commission merchants, with exclusive territories as follows: John B. Merifield Co., whose territory included the States of Washington, Oregon, Idaho, Montana, Utah, Colorado, Nevada, and Wyoming, and also northern California; and Bradlow, Inc., whose territory was southern California. Sales to Merifield and Bradlow were made by Sealey at the same prices at which sales were made to wholesalers and manufacturers elsewhere in the United States. The circumstance that gives rise to this litigation is that Sealey, notwithstanding its exclusive territory arrangement with Merifield and Bradlow, continued, with their knowledge and evident assent, to sell its regular fishhooks directly to a few old customers in their territories. Such sales were made at list prices, but without adjustment for the quoted discounts. On these sales, a discount, less in amount than the discounts quoted in the pricelists, was paid to Merifield or Bradlow, according to the territory in which Sealey made the direct sale to the old customer. There is no question that these fishhooks are not merchandise enumerated in the final list (T.D. 54521) issued by the Secretary of the Treasury, pursuant to the Customs Simplification Act of 1956 (T.D. 54165). Therefore, since all of the merchandise with which these appeals are concerned was entered subsequent to February 27, 1958, it is to be appraised under the amended law at export value, provided there is" }, { "docid": "16323524", "title": "", "text": "sell these cigarette lighters were made methodically and regularly during the period not only to the trade but to the public in general through advertisements in local newspapers and through the mailing of pricelists. Even though the record may not establish the exact dates of mailing, there is evidence that the pricelists were in fact mailed and nothing to indicate they were not. There is also evidence that purchasers were solicited by employees of V. I. Jewelry and that most of the styles of lighters involved herein were in fact sold in the Virgin Islands from time to time during a period of about iy2 years prior to the dates of importation. Since the prices do not vary with the quantity, no issue of usual wholesale quantities arises. There is no controversy as to principal market, which was Charlotte Amalie, St. Thomas, nor is there any evidence that the sales were restricted in any way. The only issue is as to the bona jides of the offers and sales above mentioned. Appellant claims that they should be disregarded on the following grounds: The price should have had some relationship to the price at which the merchandise was sold to the United States or some relationship to the actual cost of production; the sales were sporadic; there were no sales of some of the styles involved herein; the quantities sold in the Virgin Islands were small as compared to the quantities sold to the United States; the offers and sales were not in the ordinary course of trade; the offers were contrived and had no real substance; they were controlled by the importer and not the manufacturer; sales to tourists were sales for exportation and not for home consumption; the offers and sales were made with a view to establishing a value which would permit the free entry of the lighters into the United States under section 301, supra, as merchandise not containing foreign materials to the value of more than 50 percent of their total value. In the course of its opinion, the trial court stated: * * * While" }, { "docid": "13798923", "title": "", "text": "Apparently, and it is presumed to be so in the absence of any proof to the contrary, the conduct of the importer in its home market business was the normal manner in which persons engaged in the same general class or kind of business transacted their affairs. It was proper for the Appraiser to adopt that view in considering whether or not the transactions in question satisfied the statutory requirements for a finding of export value.” [Italics supplied.] In the view that we have here taken that all sales in the ordinary course of trade must be considered in ascertaining the price which fairly reflects the market value of the merchandise, it follows that evidence of the price and, hence, of the value of goods in the foreign market is relevant to the ultimate determination of the export value of imported merchandise within the purview of section 402(b) of the Tariff Act of 1930, as amended, supra, in the case of sales to selected purchasers. That is not to say, of course, that the price at which such merchandise is freely sold in the foreign market must necessarily be the same as the price at which it was offered for exportation to the United States, for export value to exist. It is merely that, in considering the price for exportation, the elements entering into the domestic price which are the same as those entering into the export price have a direct bearing upon whether or not the export price fairly reflects the market value of the merchandise. Indeed, we are of opinion that this is but one of only two areas of competent evidence in the instant record from which a price fairly reflective of market value can be determined. We reject as lacking in probative value both the exporter's pricelist and the witness’ statement that the prices therein quoted were the prices at which the company was willing to sell the individual sizes to any other distributor in the United States. There is no evidence in the record to show that the pricelist in question was ever circulated to" }, { "docid": "16727189", "title": "", "text": "or the addition for profit and general expenses usually made, in convection with sales in such market of imported merchandise of the same class or kind as the merchandise undergoing appraisement; (2) the usual costs of transportation and insurance and other usual expenses incurred with respect to such or similar merchandise from the place of shipment to the place of delivery, not including any expense provided for in subdivision (1) ; and (3) the ordinary customs duties and other Federal taxes currently payable on such or similar merchandise by reason of its importation, and any Federal excise taxes on, or measured by the value of, such or similar merchandise, for which vendors at wholesale in the United States are ordinarily liable. If such or similar merchandise was not so sol'd or offered at the time of exportation of the merchandise undergoing appraisement, the United States value shall be determined, subject to the foregoing specifications of this subsection, from the price at which such or similar merchandise is so sold or offered at the earliest date after such time of exportation but before the expiration of ninety days after the importation of the merchandise undergoing appraisement. Plaintiff, in challenging the appraised value, assumes the twofold obligation of not only showing that the appraisement was erroneous, but also of establishing some other dutiable value. Kenneth Kittleson v. United States, 40 CCPA 85, C.A.D. 502. To do this, the appealing party must meet every material issue involved in the case, and, if he fails to do so, the value fixed by the appraiser remains in full force and effect. Brooks Paper Company v. United States, 40 CCPA 38, C.A D. 495. Plaintiff introduced in evidence several pricelists to substantiate the claimed values. One of these (collective exhibit 6) is a pricelist, apparently effective as of “12/5/60,” as per notation on the said pricelist. Such pricelist, promulgated and effective some time after the date of exportation of the merchandise herein involved, is not probative of any claimed values therein. Johnny Jones, Jr. v. United States, 17 Cust. Ct. 459, Reap. Dec. 6580, affirmed in" }, { "docid": "22076765", "title": "", "text": "distinguish the same, I am of the opinion that it represents the present law on the subject and is applicable to the situation in the case at bar. [All italics quoted.] The record, however, does establish that there existed between the exporter and the importer herein an exclusive agreement for the purchase of said merchandise. The affidavit, plaintiff’s exhibit 4, also establishes that the so-called “bedrails” were sold exclusively to the importer herein. Accordingly, there being a restriction as to such merchandise in both the “panel” and “bedrail” cases, such merchandise was not freely offered for sale for export to the United States. We are of the opinion, however, that the record does establish that other manufacturers of similar merchandise did freely offer their merchandise for sale for export to the United States, based upon the “AMFIN” pricelist. An examination of the invoices contained herein establishes that, in a number of instances, the invoiced price does not conform with the price for the particular size, quality, and thickness of plywood set forth on said “AMFIN” pricelist. This, of course, takes into consideration the various additions and deductions required by said price-list. Particular attention should be given to certain plywood designated as “A/BB ” in various sizes covered by reappraisement 280824-A. It is to be noted that the “AMFIN” pricelist does not contain nor provide for “A” front face quality plywood. Therefore, this court is unable to ascertain the price for said “A” quality. In view of the foregoing, we are of the opinion that this matter should be remanded to a single judge for the purpose of obtaining evidence relative to the actual mathematizing of all of the merchandise covered by the four appeals herein, based upon the “AMFIN” pricelist, and such evidence as is necessary should be presented with respect to the said plywood designated as “A” face quality. To the extent indicated and for the foregoing reasons, the decision and judgment of the trial court are hereby modified, and the case is remanded to the trial court for determination of the export value of similar merchandise. Judgment will" }, { "docid": "5544990", "title": "", "text": "the foreign market is relevant to the ultimate determination of the export value of imported merchandise within the purview of section 402(b) of the Tariff Act of 1930, as amended, supra, in the case of sales to selected purchasers. That is not to say, of course, that the price at which such merchandise is freely sold in the foreign market must necessarily be the same as the price at which it was offered for exportation to the United States, for export value to exist. It is merely that, in considering the price for exportation, the elements entering into the domestic price which are the same as those entering into the export price have a direct bearing upon whether or not the export price fairly reflects the market value of the merchandise. Indeed, we are of opinion that this is but one of only two areas of competent evidence in the instant record from which a price fairly reflective of market value can be determined. We reject as lacking in probative value both the exporter’s pricelist and the witness’ statement that the prices therein quoted were the prices at which the company was willing to sell the individual sizes to any other distributor in the United States. There is no evidence in the record to show that the pricelist in question was ever circulated to any potential customers. A pricelist which is maintained for private use and is not brought to the attention of any prospective buyers is a self-serving document which lacks probative force as evidence. United States v. North American Asbestos Corp., 44 Cust. Ct. 801, A.R.D. 123, affirmed, Same v. Same, 48 CCPA 153, C.A.D. 783. We are in agreement with the trial court that, in the phrase “which fairly reflects the market value of the merchandise,” the key expression is market value, and that the following quotation from the case of United States v. Alfred Kohlberg, 2 Cust. Ct. 849, Reap. Dec. 4526, affirmed, Same v. Same, 27 CCPA 223, C.A.D. 88, is an acceptable definition thereof: Market value lias been defined as tbe price at wbicb" }, { "docid": "5605413", "title": "", "text": "Donlon, Judge: The merchandise at issue is fishhooks, exported from England, which were entered at Seattle at various times between March 3, 1958, and December 17, 1959. Four suits for reap-praisement of the merchandise have been consolidated for purposes of trial. There is no serious controversy as to facts. Proofs of record include the official papers; a stipulation which was entered into on trial; the affidavit (introduced by plaintiff) of one David J. Sealey, identified as the sales director in Eedditch, England, of Edgar Sealey & Sons, Ltd., manufacturer of the merchandise, which affidavit was verified on February 16, 1962, before the United States vice consul at Birmingham, England (exhibit 1); and a report (certified copy introduced by defendant) of Treasury Agent James O. Holmes to the Commissioner of Customs, which report is dated April 24, 1959 (exhibit A). It appears that during the period of these importations there were two pricelists offering the Sealey regular stock fishhooks for export to the United States. One of these lists quoted sterling prices; the other list quoted dollar prices. It is conceded that the sterling and dollar list prices were adjusted approximately to equivalency by the respective discounts that were quoted in the two pricelists. There were also pricelists, with prices likewise quoted in sterling and in dollars, for certain special fishhooks that Sealey manufactured to specification for two of its United States customers; but since the special fishhooks are not involved in this litigation, there is no need to consider the pricelists for the special merchandise. The proofs of record show that, except in Western United States, sales of the stock fishhooks to American customers were made to wholesalers and manufacturers at list prices adjusted by the quoted discounts. In the West, there was a different sales arrangement. There, Sealey had two commission merchants, with exclusive territories as follows: John B. Merifield Co., whose territory included the States of Washington, Oregon, Idaho, Montana, Utah, Colorado, Nevada, and Wyoming, and also northern California; and Bradlow, Inc., whose territory was southern California. Sales to Merifield and Bradlow were made by Sealey at the" }, { "docid": "16727191", "title": "", "text": "United States v. Johnny Jones, Jr., 19 Cust. Ct. 303, Reap. Dec. 7434. Further, said pricelist states: “We are not to send this out, but merely quote as we receive orders.” A so-called “office” pricelist of this character, as to which evidence of circulation in the trade or of sales made in accordance with said pricelist is lacking, is not substantive proof in support of plaintiff’s claimed values. North American Asbestos Corp. v. United States, 43 Cust. Ct. 500, Reap. Dec. 9518, affirmed in United States v. North American Asbestos Corp., 44 Cust. Ct. 801, A.E.D. 123. Plaintiff contends, in effect, that the price at which such or similar merchandise was freely sold or offered for sale in the principal market of the United States for domestic consumption, packed ready for delivery, in the usual wholesale quantities, on May 21, 1960, the date of exportation, is that set forth in the pricelists offered in evidence by the plaintiff (exhibits 5 and 5-A). Although plaintiff’s witness testified that these pricelists, dated, respectively, July 22,1959, and January 1, 1960, were in effect on May 21,1960, the date of exportation of the involved goods, there is some doubt in the court’s mind as to the sufficiency of these lists to establish the price contended for by the plaintiff. The record in this case discloses discrepancies between the actual selling prices of the merchandise here involved and the prices shown on the alleged pricelists for the involved goods. Item J 1, listed on plaintiff’s collective exhibit 5 as being offered at $2.18 per 1,000 pieces delivered, is indicated on plaintiff’s exhibit 7 as being sold at $2.27 per 1,000 pieces delivered. Item P 1, listed as being offered at $2.15 per 1,000 pieces, was sold, according to said exhibit 7, at $2.24 per 1,000 pieces delivered. Such variances between the actual selling prices and the prices indicated on the pricelists as shown establish the necessity of proof of sales and sales prices of other companies in this country ■who imported merchandise sqch or similar to that there involved. However, if the pricelists offered herein" }, { "docid": "10974357", "title": "", "text": "asbestos yarn for exportation to the United States were confined to said corporation. In respect to sales in England for home consumption during the times pertinent hereto, the affidavit shows that Cape Asbestos observed a practice of preparing certain pricelists, which were never published or circulated throughout the trade, nor were ever intended to serve as offers to sell any of the company’s merchandise at the listed prices. The lists were private documents prepared for the company’s own use in negotiating sales. Sales of the company, according to affiant, fell into two categories, to wit, to manufacturers who convert the yarn into various kinds of packing, and to “merchants and small consumers who, to my own certain personal knowledge, use Blue asbestos yam in the condition in which we sell it for maintenance purposes and not for further manufacture.” It appears that only two customers actually were included within the range of the manufacturer-purchaser class. One of them was always charged the list prices for the yam it purchased, while the other usually received a discount of approximately 19 per centum from said list prices, which discount did not depend upon the quantity purchased. Although Cape Asbestos did not refuse to sell other manufacturers, neither did it solicit business from any one else in that category. It also appears that since Cape Asbestos itself converted asbestos yarn into further manufactured articles, it was not especially desirous of selling the yam to any purchasers who might be likely to produce competitive manufactured products. Accordingly, and with respect to the class designated as “merchants and small consumers,” prices were charged for the yam which approximated the prices of cloth made from the same count of yam. No merchant or small consumer ever paid less' than the prices shown on the private pricelists, many paid more, the exact amount of each sale being ultimately determined by the bargaining ability of the customer. In the opinion of the trial court, the evidence contained in plaintiff’s collective exhibit 1 sufficed to establish that there was no single uniform price at which blue asbestos yarn, of" }, { "docid": "5544991", "title": "", "text": "and the witness’ statement that the prices therein quoted were the prices at which the company was willing to sell the individual sizes to any other distributor in the United States. There is no evidence in the record to show that the pricelist in question was ever circulated to any potential customers. A pricelist which is maintained for private use and is not brought to the attention of any prospective buyers is a self-serving document which lacks probative force as evidence. United States v. North American Asbestos Corp., 44 Cust. Ct. 801, A.R.D. 123, affirmed, Same v. Same, 48 CCPA 153, C.A.D. 783. We are in agreement with the trial court that, in the phrase “which fairly reflects the market value of the merchandise,” the key expression is market value, and that the following quotation from the case of United States v. Alfred Kohlberg, 2 Cust. Ct. 849, Reap. Dec. 4526, affirmed, Same v. Same, 27 CCPA 223, C.A.D. 88, is an acceptable definition thereof: Market value lias been defined as tbe price at wbicb the manufacturer bolds bis merchandise for sale, tbe price at wbicb he freely offers it in tbe market, and tbe price wbicb be is willing to receive, and tbe purchasers are willing to pay, in tbe ordinary course of trade. See United States v. Sixteen Cases of Silts Ribbons, 27 Fed. Cases 1099 * * *. Nevertheless, we adhere to the view that unsupported expressions of willingness to sell do not constitute proof of market value. Transatlantic Shipping Co., Inc. (Absorbo Beer Pad Co., Inc.) v. United States, 28 CCPA 19, C.A.D. 118. The record in the instant case does, however, establish that included in the price at which such merchandise is sold for home consumption in Canada were certain selling expenses which were not incurred in export transactions; that the export price differs from the domestic price only to the extent of the value of said expenses; and that the 30 per centum deduction fairly represents the savings in cost effected by the elimination of the several items comprising selling expenses. It also establishes" }, { "docid": "18700072", "title": "", "text": "Inc. 22 C.C.P.A. (Customs) 374, T.D. 47388. Accordingly, and since it appears that all purchasers could not buy the manufacturer’s grade 70/30S, in the usual wholesale quantities of 20 cwt. or more, at less than 3/lld, 3/lld and not 3/10d, as found by the trial court, represents the foreign value of grade 70/30S. The following sales of Prime B ebonite dust are shown during the period between September 1,1951, and February 29,1952: As the only sales in quantities in excess of 10 cwt. at prices other than 2/3d per pound called for delivery in the next pricing period, it is apparent that all sales in the usual wholesale quantities were made at the claimed value of 2/3d per pound, which we hold to be the foreign value of imported grade hTo. 3. Inasmuch as appellant has not assigned as error the action of the trial court in granting plaintiff’s motion to strike from the record the so-called office pricelists annexed to defendant’s exhibit A, we are not disposed to dwell at length upon the sufficiency of that document as evidence in derogation of the foregoing conclusions. Suffice it to say that said “pricelists” were not shown to have been circulated among any of the manufacturer’s customers; they do not appear to relate to any particular wholesale quantity; and they do not reflect any of the sales shown to have been made during the pricing period covering the date of exportation of the merchandise at bar. In any event, we affirm the trial court’s action in granting the motion to strike, and agree that without said “pricelists” the evidence contained in defendant’s exhibit A is insufficient to overcome the frvma facie case established by plaintiff. Based upon the foregoing considerations, this court finds the following facts: 1. That the merchandise involved in this application for review consists of ebonite or hard rubber dust, imported in two grades. 2. That grade 70/30S was entered at 3 shillings 10 pence per pound, plus packing, as invoiced, and was appraised at 4 shillings per pound, plus packing, as invoiced. 3. That grade No. 3" }, { "docid": "6632167", "title": "", "text": "plaintiff as they were at prices higher than the Canadian bonder prices. The pricelists, exhibits 6 and 7, show, respectively, the applicable United States export and home market prices. The export prices were, in fact, during the period involved, prices to Aimco, Buffalo, only, but they would have been available to Canadian original equipment manufacturers and were offered to them. However, Aimco’s product did not meet their specifications -and no sales to them were made except a single large one to Chrysler, not in the ordinary course of business nor during the period involved. Plaintiff does not argue that offers, without sales to original equipment manufacturers, establish a market value, and, in the state of the evidence, such a measure would be too speculative to use. The actual home customers were, in fact, all “bonders” who combined plaintiff’s product with asbestos linings to make a finished brakeshoe. The excesses in the pricelist for bonders, exhibit 7, of December 20,1962, over the prices to Aimco, Buffalo, in exhibit 6, are what plaintiff undertakes to account for and justify. Exhibits 8, 9, and 10, reflect the accountant’s calculations endeavoring to do this. Plaintiff’s accountant witness, in exhibit 10, takes four categories of cost totaling $74,795.13, which he says were applicable to home market sales alone and were not incurred in sales to the United States. He applies this figure to the total home market sales of $331,913.20, to get a percentage of 22.53. Both figures of course relate to the brakeshoe division of the company alone and to the fiscal year ending July 31, 1963. He deducts from the home market list prices, the 8 percent discount he says was allowed, and the 22.53 percentage already stated. The result, plaintiff claims, brings the price to bonders at, near, or below the price corresponding items to Aimco, Buffalo. The court has considered the four items making up the $74,795.13. The first item, $20,698.37 for warehousing, appears reasonable and is approved. Brakeshoes sold to Aimco, Buffalo, did not require warehousing because that company maintained an inventory in its own warehouse. The warehousing was entirely" } ]

[ { "docid": "22611152", "title": "", "text": "(1994 ed. and Supp. V), which prohibits discrimination against individuals with disabilities by recipients of federal financial assistance. Bragdon v. Abbott, supra, at 632 (citing Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 634 (1984)). Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity. See 42 U.S.C. § 12102(2)(A) (1994 ed.). The HEW Rehabilitation Act regulations provide a list of examples of “major life activities” that includes “walking, seeing, hearing,” and, as relevant here, “performing manual tasks.” 45 CFR §84.8(j)(2)(ii) (2001). To qualify as disabled, a claimant must further show that the limitation on the major life activity is “substantia[l].” 42 U. S. C. § 12102(2)(A). Unlike “physical impairment” and “major life activities,” the HEW regulations do not define the term “substantially limits.” See Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 42 Fed. Reg. 22676, 22685 (1977) (stating HEW’s position that a definition of “substantially limits” was not possible at that time). The EEOC, therefore, has created its own definition for purposes of the ADA. According to the EEOC regulations, “substantially limit[ed]” means “[u]nable to. perform a major life activity that the average person in the general population can perform”; or “[significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 CFR § 1630.2(j) (2001). In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: “[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.” §§ 1630.2(j)(2)(i)-(iii). III The question presented by this case is whether the Sixth Circuit properly determined that respondent was disabled under subsection (A) of" } ]

[ { "docid": "12865456", "title": "", "text": "create a demanding standard for qualifying as disabled.” Toyota, 122 S.Ct. at 691. Under EEOC and HHS regulations, major life activities are “functions, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1614.203(a)(3); 45 C.F.R. § 84.3(j)(2)(ii). Although the Rehabilitation Act regulations do not elaborate on the term “substantially limiting,” the regulations implementing the ADA do provide a definition. “Congress drew the ADA’s definition of disability almost verbatim from the definition of ‘handicapped individual’ in the Rehabilitation Act,” so it is appropriate to use the definition of “substantially limits” under the ADA to interpret the same phrase in the Rehabilitation Act. Toyota, 122 S.Ct. at 689. Under that definition, substantially limits means (i)[u]nable to perform a major life activity that the average person in the general population can perform, or (ii)[s]ignificantly. restricted as to the condition, manner, or duration under which an individual can perform a major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. 29 C.F.R. § 1630.2(j)(l). The Supreme Court has noted that “ ‘substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’ The word ‘substantial’ thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.” Toyota, 122 S.Ct. at 691 (internal citations omitted). Major life activities “refer to those activities that are of central importance to daily life.” Id. at 691. Plaintiff alleges that his physical impairment substantially limited his ability to perform two major life activities — walking and working. Scarborough’s claim that his impairment substantially limited his ability to walk is unavailing. Plaintiff cites in his Opposition at page 46 to only one piece of eviden-tiary support for this claim — the Administrative Law Judge’s recitation of plaintiffs testimony at the hearing that he “had a hard time getting out of bed many mornings.” (Pl.Ex. 1, at 3.) No reasonable fact-finder could infer from this vague piece of evidence that Scarborough" }, { "docid": "23164443", "title": "", "text": "who has “a physical or mental impairment which substantially limits one or more of such person’s major life activities.” See 29 U.S.C. § 705(20)(B); 29 C.F.R. § 1630.2(g) (“disability” is a “(1) physical or mental impairment that substantially limits one or more of the major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment”). “ ‘Substantially in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’ ” Toyota v. Williams, 534 U.S. 184, 196, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). “Substantially limits” is defined by regulation as: “(i) unable to perform a major life activity that the average person in the general population can perform or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(l). “Major life activities” are those “that are of central importance to daily life,” see Toyota, 534 U.S. at 197, 122 S.Ct. 681, such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working,” 29 C.F.R. § 1630.2(i). Finally, factors that should be considered in determining whether an individual is substantially limited in a major life activity are (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact, of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2); see Toyota, 534 U.S. at 195, 122 S.Ct. 681. To sustain a disability claim pursuant to the Rehabilitation Act, then, a plaintiff must as a threshold matter establish that he or she has a disability. See Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir.2002); Stein v. Ashcroft, 284 F.3d 721, 724 (7th Cir.2002). Importantly, “merely having an impairment does not make one disabled.” Toyota, 534 U.S. at 195, 122 S.Ct. 681. A claimant must instead demonstrate that the" }, { "docid": "20734908", "title": "", "text": "impairment that limits his ability to walk, a major life activity under 29 C.F.R. § 1630.2(i). For this argument to succeed, Turner must establish that he is “substantially limited” in his ability to walk. The applicable ADA regulations explain that a person is “substantially limited” in a major life activity when he is “[significantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii). This regulation adds that “an individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking.” Id § 1630 app. On the other hand, “an individual who had once been able to walk at an extraordinary speed would not be substantially limited in the major life activity of walking if, as a result of a physical impairment, he or she were only able to walk at an average speed, or even at moderately below average speed.” Id Our cases further clarify when an individual is substantially limited in his ability to walk. We have held that walking with difficulty is not a significant restriction on walking. Squibb v. Mem’l Med Ctr., 497 F.3d 775, 785 (7th Cir.2007). We have also held that an employee is not disabled when he admitted that he could walk “distances of less than a mile ‘consistently,’ [and] that a mile walk ‘wouldn’t be any problem as long as I’m paying attention to what I’m doing.’ ” Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir.2000). Other circuits have reached similar determinations. See Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 685 (8th Cir.2003) (no disability where plaintiff could walk a quarter-mile before having to stop and rest); Black v. Roadway Express, Inc., 297 F.3d 445, 451 (6th Cir.2002) (no disability where plaintiff walks with a limp and plaintiffs knee becomes “dysfunctional” after two miles of walking); Taylor" }, { "docid": "23677213", "title": "", "text": "S.Ct. 2196. Hunt does not dispute that Mr. Moore’s arthritis qualifies as an impairment for purposes of the ADA. Therefore, we begin our inquiry by asking whether Mr. Moore’s arthritis affects one or more major life activities. It is difficult to discern from Mr. Moore’s brief exactly which major life activities, in addition to working, he claims are affected by his arthritis. In his deposition, Mr. Moore identified bowling, camping, restoring cars, and mowing the lawn as activities that he could no longer participate in as a result of his arthritis. Mr. Moore does not argue to this court that these are “major life activities,” nor would such an argument be meritorious. Mr. Moore’s deposition. testimony also addresses the impact of his arthritis on his ability to walk, which the regulations specifically identify as a major life activity. See 29 C.F.R. § 1630.2(i). Mr. Moore, however, fails to mention walking as an affected major life activity in the argument section of his appellate brief. Consequently, Mr. Moore has waived this argument. See Sanchez v. Henderson, 188 F.3d 740, 746 n. 3 (7th Cir.1999) (stating that failure to mention theories in argument section of brief resulted in waiver), cert. denied, — U.S. -, 120 S.Ct. 1201, 146 L.Ed.2d 1104 (2000). Assuming, however, that Mr. Moore had raised walking as an affected major life activity, he still would have to clear the third hurdle of the Bragdon test: whether his arthritis substantially limits his ability to walk. The interpretive regulations define “substantially limits” as “[significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which an average person in the general population can perform the same major life activity.” 29 C.F.R. § 1630.2(j)(l)(ii). In his deposition, Mr. Moore testified that he walks distances of less than a mile “consistently,” that a mile walk “wouldn’t be any problem as long as I’m paying attention to what I’m doing,” and that the arthritis affects more the “rate and pace” of his activities as opposed to" }, { "docid": "21648966", "title": "", "text": "that Dvorak had put enough in the record to survive summary judgment on the first two critera: the severity of his arthritis for purposes of proving a disability, and his ability to perform the functions of his job. He faltered on the most fundamental showing—that the decision to terminate his employment was discriminatory—• whether one characterizes that as a failure to show that his adverse employment action was because of his disability, or as an inability to show that Mostardi-Platt’s stated reasons were pretextual. While “it is not always necessary to march through” the entire process of establishing a prima facie case, articulating nondiscriminatory reasons, and evaluating pretext, see Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 473 (7th Cir.2002), we find it useful under the circumstances to review the various elements of the case that Dvorak would have had to satisfy to survive summary judgment. Dvorak first had to show that he is disabled within the meaning of the ADA. The ADA’s definition of disability encompasses a “physical or mental impairment that substantially limits one or more of the major life activities,” “a record of such an impairment,” or the status of “being regarded as having such an impairment.” 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Major life activities include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(f). According to the Code of Federal Regulations, a person is “substantially limited” if, compared to the average person in the general population, she cannot perform or is limited in the manner in or extent to which she can perform one of the recognized activities. 29 C.F.R. § 1630.2(j)(ii); see also Emerson v. Northern States Power Co., 256 F.3d 506, 511 (7th Cir.2001). As a general matter, arthritis has been recognized as a relevant impairment. Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir.2000). Since Moore was decided, the Supreme Court has spoken directly to the question whether a particular impairment qualifies as a “disability” for ADA purposes. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534" }, { "docid": "23393492", "title": "", "text": "he must also establish that such an impairment “significantly limited one or more major life activity.” The EEOC’s interpretive guidance indicates that “major life activities” “are those basic activities that the average person in the general population can perform with little or no difficulty.” 29 C.F.R. App. § 1630.2(i) (1999). Operating from this premise, the actual regulations list “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working” as examples of major life activities. Id. § 1630.2(i). Indeed, the Supreme Court recently held that the ability to reproduce qualified as a major life activity. See Bragdon v. Abbott, 524 U.S. 624, 639-40, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The impairment must not only affect the way in which the plaintiff engages in such an activity, however. To the contrary, a plaintiff must establish that the impairment substantially limits the ability to engage in the activity, and on this score, the regulations are rather specific. Pursuant to 29 C.F.R. § 1630.2(j), the EEOC defines “substantially limits” as leaving the plaintiff (1) “unable to perform a major life activity that the average person in the general population can perform; or” (2) “significantly restricted as to the condition, manner, or duration under which an individual [the plaintiff] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1)(i)-(ii) (1999). Three relatively recent opinions from this court assist in giving meaning to these rather abstruse concepts. In Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir.1999), a supermarket cashier who had undergone arthroscopic surgery for an ankle problem and walked with crutches brought an ADA claim against his employer. See id. at 183. Taylor, the cashier, indicated that he could walk or stand for fifty minutes without rest. See id. at 186. Finding that Taylor was no different than an average person with respect to walking or standing during this fifty minute stretch, and as such, could “carry out most regular activities that require" }, { "docid": "23336425", "title": "", "text": "court that each plaintiff came forward with enough evidence on the disability element to raise a genuine issue of fact. Under the ADA, the term “disability” is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). As we have noted before, see, e.g., Best, 107 F.3d at 548; Roth v. Lutheran General Hosp., 57 F.3d 1446, 1454 (7th Cir.1995), a central concept for this definition is the idea of “major life activities.” Not every physical or mental impairment “counts” for ADA purposes, because most disabilities from which people suffer (bad vision, impaired hearing, arthritic joints, diabetes) do not have a substantial enough effect on their major life activities. Those activities are defined in the regulations implementing the ADA as “those basic activities that the average person in the general population can perform with little or no difficulty.” 29 C.F.R. Pt. 1630, App. § 1630.2®. There is no comprehensive list of such activities, but by way of example, the regulations suggest “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Id. See also Knapp v. Northwestern University, 101 F.3d 473, 478-82 (7th Cir.1996) (discussing major life activities within the context of the analogous Rehabilitation Act of 1973), cert. denied, — U.S. -, 117 S.Ct. 2454, 138 L.Ed.2d 212 (1997). It is not enough to show minor inconvenience; the statute specifically requires a plaintiff to show that he or she is “substantially limited” with respect to the activity in question. The regulations indicate that “an impairment is substantially limiting if it significantly restricts the duration, manner or condition under which an individual can perform a particular major life activity as compared to the average person.” 29 C.F.R. Pt. 1630, App. § 1630.2(j). While the evidence before us is inconclusive with respect to major life activities other than working, we think that all nine have shown enough of an effect on their ability to work" }, { "docid": "23203932", "title": "", "text": "has so assumed. See Rakity v. Dillon Companies, Inc., 302 F.3d 1152, 1158-60 (10th Cir.2002) (assuming without discussing that Toyota’s holding was limited to the major life activity of performing manual tasks). If we were to accept this interpretation, we would then apply the less-restrictive EEOC definition. 29 C.F.R. § 1630.2(j)(l) (2002). We decline to do so. Another way to interpret Toyota is to assume-as Dakota has -ihat Toyota’s analysis applies no matter the specific class of major life activity one is claiming. The rest of our sister circuits, who. have addressed this issue, agree. Mack v. Great Dane Trailers, 308 E.3d 776, 781 (7th Cir.2002) (‘We see no basis for confining Toyota’s analysis to only those cases involving the specific life activity [of performing manual tasks].”); EEOC v. United Parcel Service, Inc., 306 F.3d 794, 802-803 (9th Cir.2002) (“Toyota requires that ... the impairment must prevent or severely restrict use ... compared with how unimpaired individuals normally [would] ... in daily life.”); see also Mulholland v. Pharmacia & Upjohn, Inc., Case No. 01-1325, available at 52 FedAppx. 641, 644-45 (6th Cir.2002) (applying the Toyota analysis to the major life activity of learning); cf. Waldrip v. General Electric Co., 325 F.3d 652, 655 n. 4 (5th Cir.2003), available at 2003 WL 1204429, at *2 & (for the specific life activity of eating “[t]he effects of an impairment must be severe to qualify as a disability under the ADA.”). This interpretation results in “a higher threshold for the statute than some had believed it contained.” Dvorak v. Mostardi Platt Assoc. Inc., 289 F.3d 479, 484 (7th Cir.2002). We agree with this interpretation. A close examination of Toyota demonstrates that the Court defined terms of the ADA-specifically “substantially” (in the phrase “substantially limited”) and “major”- (in the phrase “major life activities”). Toyota, 534 U.S. at 197, 122 S.Ct. 681. The Court defined “substantially” to be “considerable” or “to a large degree.” Id. (citations omitted). Thus, it concluded that “substantial limitations” of impairments “clearly preelude[ ] impairments that interfere in only a minor way .... ” Id. It then defined major as “important”" }, { "docid": "5551316", "title": "", "text": "disability covered under ADA); Doe v. Region 13 Mental Health—Mental Retardation Comm’n, 704 F.2d 1402, 1408 (5th Cir.1983) (recog nizing depression as handicap under section 504 of Rehabilitation Act of 1973) ; Olson v. General Elec. Astrospace, 966 F.Supp. 312, 316 (D.N.J.1997) (recognizing depression as disability under ADA); Stradley v. Lafourche Communications, Inc., 869 F.Supp. 442, 443 (E.D.La.1994) (same); Sarko v. Penn-Del Directory Co., 968 F.Supp. 1026, 1035 (E.D.Pa.1997). Defendant asserts, however, that Plaintiffs depression was only temporary and of limited duration. Therefore, Defendant submits that Plaintiffs mental impairment does not qualify under the ADA. See, 29 C.F.R. § 1630.2(j). In opposition, Plaintiff has produced the medical expert report of Dr. Glanz dated February 22, 2001. See, Exhibit 22. Therein, Dr. Glanz concludes Plaintiff has been suffering and continues to suffer from depression with continued problems with concentration. Id. Therefore, I find there is a genuine issue as to whether Plaintiffs depression qualifies as an impairment for purposes of the ADA. Determining whether an impairment exists is only the first step in determining whether an individual is disabled. To meet the level of a disability pursuant to the ADA, the impairment must substantially limit one of the individual’s major life activities. 42 U.S.C. § 12102(2)(A); 29 C.F.R. § 1630.2(g)(1). An activity is “substantially limited” if the party is: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity- 29 C.F.R. § 1630.2(j)(l); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996). “Major life activities” include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(f); Bragdon v. Abbott, 524 U.S. 624, 638-39, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). In this case, Defendant takes issue with whether depression limits Plaintiffs major life activity of working." }, { "docid": "22578560", "title": "", "text": "claim, an employee must show: (1) that he is disabled; (2) that he is qualified for the job with or without reasonable accommodation; and (3) that he was denied a reasonable accommodation. Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir.1996). The ADA defines “disability” broadly to include: (A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). The Equal Employment Opportunity Commission (EEOC) has promulgated regulations defining “major life activities” to include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, breathing and working. 29 C.F.R. § 1630.2(i). Interpretive guidelines explain that the above list “is not exhaustive” and that “other major life activities include, but are not limited to, sitting, standing, lifting, [and] reaching.” 29 C.F.R. Pt. 1630 App. (1966). The regulations define the phrase “substantially limits” as follows: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(l) (1996). In deciding whether an individual is substantially limited in a major life activity, courts should consider the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or expected permanent or long term impact, of the impairment.' Id. § 1630.2(j)(2). B. Obviously, the first requirement that any ADA claimant must meet is to demonstrate that he or she is disabled within the meaning of the statute and regulations. We agree with the district court that Penny-failed to clear this hurdle; his proof in response to the defendant’s motion for summary judgment failed to create a triable issue of fact regarding whether he is substantially limited" }, { "docid": "11703454", "title": "", "text": "diagnosis of an impairment.”). The EEOC’s nonexhaustive definition of “major life activities” includes “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i); accord 45 C.F.R. § 84.3(j)(2)(ii) (HHS regulations). To show a “substantial limitation” upon a major life activity, EEOC regulations require that the individual be “[ujnable to perform a major life activity that the average person in the general population can perform”; or be “[sjignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” Id. § 1630.2(j)(l). EEOC regulations recommend considering several factors, including the nature and severity of the impairment, the duration or expected duration of the impairment, and the long-term impact resulting from the impairment. See id. § 1630.2(j)(2). The Supreme Court has explained that passing through the portal between a limitation and a “substantial limitation” is neither epigrammatic nor easy. Noting Congress chose to incorporate the word “substantially” into the phrase “substantially limits,” the Court reasoned an impairment “ ‘considerable’ or ‘to a large degree’ ” was required. Toyota Motor Mfg., 534 U.S. at 196, 122 S.Ct. 681. The impairment must “prevent[] or severely restrict ] the individual from doing activities that are of central importance to most people’s daily lives.” Id. at 198, 122 S.Ct. 681. Only impairments with “per manent or long term” impacts are eligible. Id. (citing 29 C.F.R. §§ 1630.2(j)(2)(n)-(iii) (2001)); accord Samuels, 437 F.3d at 802 (“[T]emporary impairments with little or no long-term impact are not disabilities.”). Because the major life activity Napreljac claims to have been substantially limited in performing is working, this case presents an additional complication. Although the EEOC has specifically labeled “working” as a major life activity, the Supreme Court has reserved judgment regarding whether it qualifies as a major life activity under the ADA. Toyota Motor Mfg., 534 U.S. at 200, 122 S.Ct. 681. Our circuit has not. See Breitkreutz" }, { "docid": "18470679", "title": "", "text": "“Disability” Under the Americans with Disabilities Act (ADA), an employer may not “discriminate against a qualified individual with a disability.” 42 U.S.C. § 12112(a). Thus, as a threshold matter in any ADA case, the plaintiff must present sufficient evidence that she had a “disability.” Defendant argues that plaintiff has failed to present evidence sufficient to create a factual issue as to whether her carpal tunnel syndrome was a disability as that term is defined by the ADA. Under the ADA, an individual is considered to have a “disability” if that individual either (1) has a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (2) has a record of such impairment, or, (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2). The Code of Federal Regulations defines “substantially limits” as: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted in the condition, manner, or duration under which the individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). “Major life activities” include earing for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, and working. 29 C.F.R. § 1630.2(i). The three factors to be considered in determining whether a person’s impairment is substantially limiting are: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). In addition, where, as here, a plaintiffs contention is that she was substantially limited in the major life activity of working, the plaintiff must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to" }, { "docid": "21648968", "title": "", "text": "U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In that case, the Court established a higher threshold for the statute than some had believed it contained. “ ‘[Substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’ ” Id. at 691 (alteration in original). “The word ‘substantial’ thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.” Id. The Court did not question the idea that walking is a basic enough activity to qualify as a “major life activity” under the statute. But Dvorak would have to show that his arthritis “prevents or severely restricts” him from walking, in a permanent or long-term way. Id. See also Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); 29 C.F.R. § 1630.2(i). It is difficult on the present record to make this determination: we would need to see whether Dvorak’s arthritis met the Williams standard. Alternatively, we would have to decide whether Mostardi-Platt regarded him as so severely limited in his ability to walk (an alternative method of proof under the statute that Williams did not address). See 42 U.S.C. § 12102(2); see also Bekker, 229 F.3d at 670; Wright v. Illinois Dep’t of Corrections, 204 F.3d 727, 730-32 (7th Cir.2000) (discussing the guidelines for deciding when an employee is “regarded as” having a disability). We will assume for the sake of argument that Dvorak presented enough evidence to create a question of fact on the disability issue, though we express no opinion on the point. Dvorak’s work had been restricted to desk duty only, and Mostardi-Platt discussed the limitations imposed by the disability on Dvorak’s work performance with its labor counsel. Mostardi-Platt believed, as informed by Dvorak, that he might never regain his full ability to walk. The suggestion that Dvorak be placed on long-term medical leave also supports a finding that Mostardi-Platt regarded Dvorak as being physically impaired. Taking his disability as a given, we must next determine whether there was a genuine issue of fact about Dvorak’s qualifications to perform" }, { "docid": "16317858", "title": "", "text": "At all times the burden of persuasion remains with the plaintiff. See id. To establish a prima facie case of discrimination, Taylor must show (1) that she had a disability within the meaning of the ADA, (2) that she was qualified to perform the essential functions of her job, with or without reasonable accommodation, and (3) that.she suffered an adverse employment action because of her disability. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.1999) (en banc). Under the ADA, disability is defined as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). According to the regulations that guide the interpretation of the ADA, an impairment is “substantially limiting” if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform such an activity compared to the general population. 29 C.F.R. § 1630.2(j)(l)(i)-(ii). Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working, 29 C.F.R. § 1630.2(i), as well as sitting, standing, lifting, and reaching. See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir.1999). Several factors are considered in determining whether a person is substantially limited in a major life activity: (1) the nature and severity of the impairment; (2) its duration or anticipated duration; and (3) its long-term impact. 29 C.F.R. § 1630.2(j)(2)(i)-(iii). Whether an individual is substantially limited in a major life activity must take into account mitigating measures such as medication and assisting devices. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2146, 144 L.Ed.2d 450 (1999). Heart disease is an impairment that, if it substantially limits a major life' activity, may constitute a disability. See Weber v. Strippit, Inc., 186 F.3d 907, 913 (8th Cir.1999), cert. denied, — U.S. -," }, { "docid": "18470147", "title": "", "text": "an impairment need not be permanent in order to rise to the level of a disability.”) (citing 29 C.F.R. § 1630.2(j)(2)(iii)). See also Adams v. Citizens Advice Bureau, 187 F.3d 315, 317 (2d Cir.1999) (“[W]e have no occasion to consider whether temporary injuries are per se unprotected under the ADA.”). 2. Major Life Activity In deciding whether a particular activity is a “major life activity,” the focus is “whether that activity is a significant one within the contemplation of the ADA ... ”. Colwell, 158 F.3d at 642. In general, “major life activities” include functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2®. Here, the major life activity impaired by Felix’s PTSD was sleep. The Second Circuit has held that sleep is “undoubtedly a major life activity.” Colwell, 158 F.3d at 643. See also Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.1999) (“Sleeping is a basic activity that the average person in the general population can perform with little or no difficulty, similar to the major life activities of walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, and reaching.”); Knorr v. Pepsico Food Servs., Inc., No. 97 Civ. 1819, 1999 WL 200685, at *8 n. 15 (N.D.N.Y. Apr. 8, 1999) (citing Colwell). 3. Substantial Limitation The EEOC has defined “substantially limits” to mean: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(l). EEOC regulations also list the following considerations as relevant: “(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2). Felix’s" }, { "docid": "22280745", "title": "", "text": "City of New York, 274 F.3d 740, 747 (2d Cir.2001). Here, the district court addressed only the second element, and thus we only address the questions of whether Capobianco was disabled or was regarded by defendants as being disabled within the meaning of the ADA. A “disability” is: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). The existence of a disability must be determined on a “case-by-case” basis. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Not every impairment is a “disability” within the meaning of the ADA; rather, there are two requirements: the impairment must limit a major life activity and the limitation must be substantial. 42 U.S.C. § 12102(2)(A). “[Mjajor life activities” are “activities that are of central importance to daily life.” Toyota, 534 U.S. at 197, 122 S.Ct. 681. The EEOC regulations define “major life activities” to include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i); see EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, 74 (2d Cir.2003). The regulations define the term “substantially limits” to mean: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(l). Factors to consider in determining whether a major life activity is substantially limited include: the nature and severity of the impairment; its duration or expected duration; and the existence of any actual or expected permanent or long term impact. Id. § 1630.2(j)(2); see Toyota, 534 U.S. at 196-97, 122 S.Ct. 681 (“ ‘[Substantially’ in the phrase" }, { "docid": "15325580", "title": "", "text": "obtain relief under the ADA, [Nyrop] was required to show that [s]he was a disabled person within the meaning of the ADA, was qualified to perform the essential functions of h[er] job, and suffered an adverse employment action because of h[er] disability.” Finan, 565 F.3d at 1079; see also Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 868 (8th Cir.2008) (stating the same analysis applies to both ADA and Rehabilitation Act claims). To demonstrate a disability, Nyrop must show she has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). “Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i) (italics removed). “Substantially limits” means one is: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity- Id. § 1630.2(j)(l) (italics removed). To determine whether an individual is substantially limited in a major life activity, we consider: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” Id. § 1630.2(j)(2). “The terms ‘major life activities’ and ‘substantial limitation’ must be ‘interpreted strictly to create a demanding standard for qualifying as disabled....’” Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir.2007) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)). The district court recognized, and the parties do not dispute, MS is a physical impairment. However, the district court rightfully observed, in order to prove she is disabled, Nyrop cannot merely rely on her diagnosis but, instead, must show her MS substantially limits" }, { "docid": "21648967", "title": "", "text": "substantially limits one or more of the major life activities,” “a record of such an impairment,” or the status of “being regarded as having such an impairment.” 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Major life activities include “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(f). According to the Code of Federal Regulations, a person is “substantially limited” if, compared to the average person in the general population, she cannot perform or is limited in the manner in or extent to which she can perform one of the recognized activities. 29 C.F.R. § 1630.2(j)(ii); see also Emerson v. Northern States Power Co., 256 F.3d 506, 511 (7th Cir.2001). As a general matter, arthritis has been recognized as a relevant impairment. Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir.2000). Since Moore was decided, the Supreme Court has spoken directly to the question whether a particular impairment qualifies as a “disability” for ADA purposes. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In that case, the Court established a higher threshold for the statute than some had believed it contained. “ ‘[Substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’ ” Id. at 691 (alteration in original). “The word ‘substantial’ thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.” Id. The Court did not question the idea that walking is a basic enough activity to qualify as a “major life activity” under the statute. But Dvorak would have to show that his arthritis “prevents or severely restricts” him from walking, in a permanent or long-term way. Id. See also Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); 29 C.F.R. § 1630.2(i). It is difficult on the present record to make this determination: we would need to see whether Dvorak’s arthritis met the Williams standard. Alternatively, we would have to decide whether Mostardi-Platt regarded him as so severely" }, { "docid": "22280746", "title": "", "text": "EEOC regulations define “major life activities” to include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i); see EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, 74 (2d Cir.2003). The regulations define the term “substantially limits” to mean: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(l). Factors to consider in determining whether a major life activity is substantially limited include: the nature and severity of the impairment; its duration or expected duration; and the existence of any actual or expected permanent or long term impact. Id. § 1630.2(j)(2); see Toyota, 534 U.S. at 196-97, 122 S.Ct. 681 (“ ‘[Substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree,’ ” and “thus clearly precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities.”) (alteration in original). Moreover, the mere fact that an impairment requires an individual to perform a task differently from the average person does not mean that she is disabled within the meaning of the ADA; rather, there must be a significant restriction. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 564-65, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (rejecting lower court’s “transforming ‘significant restriction’ into ‘difference,’ ” thereby “undercutting] the fundamental statutory requirement that only impairments causing ‘substantial limitations]’ in individuals’ ability to perform major life activities constitute disabilities”) (second alteration in original). The inquiry is not just on the effect an impairment has on tasks associated with a specific job, but it must focus primarily on whether the claimant is “unable to perform the variety of tasks central to most people’s daily lives.” Toyota, 534 U.S. at 200, 122 S.Ct. 681. Finally," }, { "docid": "22294542", "title": "", "text": "1 (2d Cir.1997) (great deference owed EEOC regulations interpreting ADA). The regulations define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). The listed activities are “examples only,” and “other major life activities include, but are not limited to, sitting, standing, lifting, or reaching.” U.S. Equal Employment Opportunity Commission, Americans mth Disabilities Act Handbook 1-27 (1992) (“ADA Handbook”). “Substantially limits” is defined as: ©Unable to perform a major life activity that the average person in the general population can perform; or (ii)Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(l). The regulations further counsel that: [t]he following factors should be considered in determining whether an individual is substantially limited in a major life activity: ©The nature and severity of the impairment; (ii)The duration or expected duration of the impairment; and (iii)The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. Id. § 1630.2(j)(2). Although almost any impairment may, of course, in some way affect a major life activity, the ADA clearly does not consider every impaired person to be disabled. Thus, in assessing whether a plaintiff has a disability, courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities. See, e.g., Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995) (“not every impairment that affeet[s] an individual’s major life activities is a substantially limiting impairment”). Ryan presents two arguments in support of her claim that her colitis substantially limits a major life activity. First, she main tains the ability to control the elimination of waste is a major life activity, although the regulations do not define it as such, and that her colitis substantially limits this activity. Second, she asserts that her colitis" } ]

[ { "docid": "6996156", "title": "", "text": "in appellees’ favor. Hammons argues that appellees’ 2002 Policy, which prohibits in-eell possession and use of both prayer oils and of non-religious imitation designer colognes and perfumes, violates RLUIPA. Given the unique facts and procedural posture of this case, the district court never considered whether Hammons’ complaint stated a claim under RLUIPA. On remand, the district court should construe Hammons’ pro se complaint in light of RLUIPA or consider whether to appoint counsel to assist Hammons in presenting the RLUIPA claim. Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 2003 WL 22230113 at *21 (10th Cir. Sept.29, 2003). If it is determined that Hammons has stated a claim for relief under RLUIPA, appellees may then raise any appropriate defenses to the RLUIPA claim. See Fed.R.Civ.P. 8(a); Fed. R.Civ.P. 12(b). IV. CONCLUSION For the foregoing reasons, this court AFFIRMS the district court’s grant of summary judgment in appellees’ favor on Hammons’ First Amendment claim. This court AFFIRMS the district court’s ruling that Saffle is entitled to qualified immunity. This court REMANDS the case to the district court for proceedings on a RLUI-PA claim not inconsistent with this opinion. . The qualified immunity issue is not affected by our remand of the RLUIPA issue. On appeal, Hammons seeks injunctive relief under RLUIPA and qualified immunity applies only to claims for damages. Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Kikumura v. Hurley, 242 F.3d 950, 962-63 (10th Cir.2001). . RLUIPA provides, in relevant part: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). In addition, RLUIPA defines \"religious exercise\" as “in-clud[ing] any exercise of religion, whether or not compelled by, or central to, a system of religious belief.\" § 2000cc-5(7)(A). . Appellees argue" } ]

[ { "docid": "8238303", "title": "", "text": "Ortiz’s requests posed a security risk to the institution or were incompatible with his detention. The district court cannot assume that these barriers exist. Notably, with respect to any economic impediment to providing the requested items, it is not even clear from the complaint that Mr. Ortiz expected the requested items to be provided free of charge. Furthermore, although Mr. Ortiz eventually did see a priest on one occasion, that accommodation was distinct from his request for the religious articles and an opportunity to attend Mass in order to sustain the practice of his religion on a regular basis. We cannot, of course, make any determination about the ultimate merits of the allegations contained in the complaint, nor should our decision today be read as suggesting an outcome. We hold only that Mr. Ortiz has stated a claim that is “plausible on its face”: that Chief Downey denied him religious articles and the opportunity to attend Mass without adequate penological justification. Therefore, at this stage, the complaint should not have been dismissed. Doss v. Clearwater Title Co., 551 F.3d 634, 639 (7th Cir.2008). 2. Mr. Ortiz also contends that the allegations in his complaint support a claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a). RLUIPA prohibits prisons that receive federal funds from imposing a substantial burden on a prisoner’s religious exercise unless the burden furthers a compelling governmental interest and does so by the least restrictive means. See 42 U.S.C. § 2000cc-1(a); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir.2008). Mr. Ortiz’s complaint alleges that Chief Downey’s actions imposed a substantial burden on his ability to exercise his religion; this is all that is required to state a claim under RLUIPA. See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir.2008) (holding that a prisoner who complained that officials substantially burdened his religious exercise advanced a claim under RLUIPA “because his complaint and subsequent filings provided appellees with ‘fair notice’ of that claim, even though the statute was not cited in the complaint itself’); Hammons v. Saffle, 348 F.3d 1250, 1258-59 (10th" }, { "docid": "8782368", "title": "", "text": "Satisfied that our jurisdiction is secure, we move on to the merits. We can quickly dispose of several of Maddox’s claims. Maddox’s prayers for injunctive relief are moot because he is no longer an inmate at Lawrence. See Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.2009). Maddox has not shown a realistic possibility that he will again be incarcerated in the same state facility and therefore be subject to the actions of which he complains here. As such, “[a]ny relief that our judgment might permit would be purely speculative in nature.” See id. Further, the defendants are immune from suit under § 1983 for monetary damages in their official capacities. See Brown v. Budz, 398 F.3d 904, 917-18 (7th Cir.2005) (“To the extent [the plaintiff] seeks monetary damages from defendants acting in their official capacity, those claims ... are dismissed as they are barred by the Eleventh Amendment.”). Maddox’s RLUIPA claim also fails. Sovereign immunity shields state officials from monetary damages in their official capacity under RLUIPA. See Sossamon v. Texas, — U.S. -, 131 S.Ct. 1651, 1658-59, 179 L.Ed.2d 700 (2011); see also Nelson v. Miller, 570 F.3d 868, 884-85 (7th Cir.2009). We have also held that RLUIPA does not allow for suits against prison officials in their individual capacity. Nelson, 570 F.3d at 886-89. Because Maddox has no claim to injunctive relief in light of his transfer to Danville, he cannot seek relief under RLUIPA. So that leaves us with Maddox’s 1983 claims for monetary damages against the defendants in their individual capacities. It is to those claims we now turn. A. Section 1915A Screening — Dismissal of Counts 2 and 3 Maddox’s complaint alleges that the defendants substantially burdened the free exercise of his religion as an AHI and discriminated against his religion in violation of the First and Fourteenth Amendment. (PI. Compl., App. 1, preliminary statement). He set forth a number of factual allegations in support of his claims. He asserted that the “study of the [AHI] religion both by Plaintiff and with other [AHI] members is an integral part of the daily practice of" }, { "docid": "10030734", "title": "", "text": "his RLUIPA theory in his post-complaint filings, thereby apprising appellees before summary judgment that he was claiming relief under both the First Amendment and RLUIPA. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-94 (9th Cir.2000) (holding that plaintiffs could not proceed with different theory of liability after close of discovery when defendant would be prejudiced by inability to develop newly relevant evidence and defenses). Appellees had notice of and the opportunity to challenge Alvarez’s RLUIPA claim. Consequently, that claim was properly before the district court at summary judgment and the court erred in not addressing it. Appellees’ rigid insistence that RLUIPA claims must be specifically pled in the plaintiffs complaint is without support in our precedent and frankly puzzling in view of the lenience traditionally afforded pro se pleadings and of RLUIPA’s manifest purpose of protecting “institutionalized persons who are unable freely to attend to their religious needs.” See Cutter, 544 U.S. at 721, 125 S.Ct. 2113. The “simplified pleading standard applies to all civil actions, with limited exceptions” provided for by rule or by statute. See Swierkiewicz, 534 U.S. at 513, 122 S.Ct. 992. Accordingly, we hold that RLUIPA claims need satisfy only the ordinary requirements of notice pleading, and that a complaint’s failure to cite RLUIPA does not preclude the plaintiff from subsequently asserting a claim based on that statute. Under this pleading standard, it is sufficient that the complaint, alone or supplemented by any subsequent filings before summary judgment, provide the defendant fair notice that the plaintiff is claiming relief under RLUIPA as well as the First Amendment. Having concluded that the district court erred in not addressing Alvarez’s RLUIPA claim, we vacate its grant of summary judgment as to his religious exercise claims without reaching his constitutional arguments in support of reversal. See Anchustegui v. Dep’t of Agric., 257 F.3d 1124, 1129 (9th Cir.2001). This panel shall retain jurisdiction over any subsequent appeals in this matter. Alvarez shall recover his costs on appeal. AFFIRMED IN PART AND REVERSED IN PART; REMANDED. . Alvarez also claimed that he was deprived of access to legal materials" }, { "docid": "14222133", "title": "", "text": "of the district court. MOTION TO DISMISS Because Kuperman completed his sentence and was released from state custody while his appeal was pending, Prison Officials moved to dismiss his claims for injunctive and declaratory relief as moot. Kuperman agrees that his claims for injunctive relief are moot. But he insists that his claims for declaratory relief and monetary damages survive. We can decide only ongoing cases and controversies, of course. See U.S. Const. art. III, § 2, cl. 1; Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). So if an event occurs that makes it impossible for us to provide some form of meaningful relief, there is, generally speaking, no case or controversy, and we must dismiss the appeal as moot. See, e.g., Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). Our first task, then, is to see whether Kuperman’s release from prison eliminates any possibility of further judicial relief, which would render his claims moot. Official Capacity Claims During preliminary screening of Kuperman’s complaint, the district court jettisoned his official capacity claims except to the extent they sought injunctive relief — a ruling Kuperman does not contest here. Kuperman concedes that his release moots his injunctive relief requests. See, e.g., Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir.2009). That leaves us with this: § 1983 and RLUIPA claims against Prison Officials in their personal capacities seeking monetary and declaratory relief. Personal Capacity Claims A claim is moot only if no relief is available. See Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447. Prison Officials appear to concede that Kuperman’s claims for monetary relief survive, given that their motion to dismiss mentions Kuperman’s request for monetary relief but asks us to dismiss only his claims for injunctive and declaratory relief. Indeed, as a former prisoner alleging a constitutional violation that occurred during his incarceration, Kuperman may obtain nominal and punitive damages under § 1983. See, e.g., Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir.2004); Thompson v. Carter, 284 F.3d 411, 416" }, { "docid": "8238305", "title": "", "text": "Cir.2003) (remanding with instructions to construe a pro se prisoner complaint in light of RLUIPA even though the complaint alleged only a violation of “his religious freedom rights”). Although Mr. Ortiz’s complaint does not mention RLUIPA specifically, this is not an obstacle to his claim, particularly in light of his status as a pro se litigant. See Alvarez, 518 F.3d at 1157-59; Hammons, 348 F.3d at 1258-59. Our sister circuits have held, and we agree, that a prisoner who does not plead a RLUIPA violation specifically, but does allege unconstitutional restrictions on religious practice, states a claim under the statute. See Alvarez, 518 F.3d at 1157-59; Hammons, 348 F.3d at 1258-59. Litigants need not plead legal theories, and the factual allegations in Mr. Ortiz’s complaint provide fair notice to the defendants of the necessary elements of a RLUIPA claim. See, e.g., Jogi v. Voges, 480 F.3d 822, 826 (7th Cir.2007). Accordingly, on remand the district court should permit Mr. Ortiz to amend his complaint to add a specific claim under RLUIPA, as he is entitled to do by the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 15(a)(1) (“A party may amend its pleading once as a matter of course ... before being served with a responsive pleading.”). C. We now turn to the dismissal of Mr. Ortiz’s access-to-courts claim. He acknowledges that his appointed counsel provided him access to the courts in his criminal case. He submits, however, that such access does not carry over to his civil case. Consequently, he contends, he still has need of access to a law library and to legal periodicals. The Constitution protects a prisoner’s right of access to the courts; state actors must respect that right by not impeding prisoners’ efforts to pursue legal claims. Lewis v. Casey, 518 U.S. 343, 349-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Tarpley, 312 F.3d at 899; May v. Sheahan, 226 F.3d 876, 883 (7th Cir.2000). That right is violated when a prisoner is deprived of such access and suffers actual injury as a result. Lewis, 518 U.S. at 350. Mr. Ortiz cannot prevail on his" }, { "docid": "22476231", "title": "", "text": "Id. at 775, Neitzke, 109 S.Ct. at 1833. See also Abdul-Akbar, 901 F.2d at 334-35 (plaintiffs claim that corrections officers ordered him to pack much of his legal materials and dispose of it is not frivolous). After the individual defendants answered, the district court subsequently dismissed the remaining claims against these defendants as frivolous, concluding that the complaint raised the same issues being litigated in the class action suit of Vazquez v. Carver. We have reviewed the Vazquez complaint and conclude that the district court erred. The complaint in Vazquez seeks to litigate only issues regarding the allegedly heinous conditions of confinement at the Lehigh County prison, alleged disparate treatment of women and minorities, and an alleged lack of access to the law library. The Vazquez class action does not seek to litigate the issues of which plaintiff now complains, i.e., that the Northampton County prison kept some of his legal materials, that he was allowed to bring only one box of legal materials with him upon his transfer to the Lehigh County prison and that Lehigh County would permit him to keep only legal papers related to his Le-high County cases. IV. For the foregoing reasons, we will vacate the judgment of the district court and remand for further proceedings consistent with this opinion. . This court uses a two-step analysis in evaluating motions to proceed under § 1915. First, the district court evaluates a litigant’s financial status and determines whether (s)he is eligible to proceed in forma pauperis under § 1915(a). Second, the court assesses the complaint under § 1915(d) to determine whether it is frivolous. Sinwell v. Shapp, 536 F.2d 15 (3d Cir.1976). Likewise, when deciding a motion to proceed in forma pauperis on appeal, this court grants or denies in forma pauperis status based on economic criteria alone and then, if warranted, dismisses the appeal as frivolous pursuant to § 1915(d). See Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 n. 2 (3d Cir.1989) (recognizing that the circuits vary in their interpretations of § 1915, but noting that Neitzke v. Williams, — U.S. —," }, { "docid": "14461352", "title": "", "text": "summary judgment in defendants’ favor on their misappropriation by disclosure claim. Additionally, plaintiff asserts that, even if he disclosed the first cost data while employed by defendants, there is no evidence that he disclosed the first cost data to Erlbaum with full knowledge that it constituted a trade secret which would likely create a genuine issue of material fact under these provisions as well. Defendants have thus provided sufficient evidence to survive summary judgment but have not shown that no genuine issue of material fact exists as to this issue. Therefore, I will deny both defendants’ and plaintiffs cross-motions for summary judgment on defendants’ PUTSA counterclaim for misappropriation by disclosure of the first cost data. III. Defendants’ Requested Damages and Relief Defendants seek injunctive relief, compensatory damages, exemplary damages, attorneys’ fees, expenses and costs, declaratory relief and an extension of the employment agreement. A. Injunctive Relief Defendants seek injunctive relief against plaintiff to prevent him from any future use or disclosure of the first cost data. A preliminary injunction is an extraordinary remedy that should be granted only if a party shows: (1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004). A party’s failure to establish any element in its favor renders a preliminary injunction inappropriate. Ace Am. Ins. Co. v. Wachovia Ins. Agency Inc., 306 Fed.Appx. 727, 732 (3d Cir.2009), citing Nutrasweet Co. v. VitMar Enters., Inc., 176 F.3d 151, 153 (3d Cir.1999). “A failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction.” Ace Am. Ins. Co., 306 Fed.Appx. at 732, citations omitted. “Grounds for irreparable injury include loss of control of reputation, loss of trade, and loss of good will.” Kos Pharms., 369 F.3d at 726, quoting Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 805 (3d Cir.1998). Defendants “seek" }, { "docid": "14070822", "title": "", "text": "after demonstrating a lesser level of support. Plaintiffs also urge that minor political parties ought not to be subject to any signature requirement in light of the fact that they have already qualified as a political party. The parties jointly stipulated to the applicable facts. On April 5, 2006, the District Court denied the plaintiffs’ motion for a preliminary injunction on the ground that § 2911(b) was constitutional. At the same time, the District Court strongly urged the Pennsylvania General Assembly to reconsider the 2% threshold in light of the 67,070 signatures needed this cycle. This timely and expedited appeal followed. II. Jurisdiction and Standard of Review The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1292(a)(1) (noting that “the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”). Ordinarily, we use a three-part standard to review a District Court’s decision to grant or deny a prehminary injunction. Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir.2004). The District Court’s findings of fact are reviewed for clear error, the District Court’s conclusions of law are evaluated under a plenary standard, and the ultimate decision to grant the preliminary injunction is reviewed for abuse of discretion. Id. “The test for preliminary relief is a familiar one. A party seeking a preliminary injunction must show that (1) it has a likelihood of success on the merits, (2) it will suffer irreparable harm if the injunction is denied, (3) granting preliminary relief will not result in even greater harm to the nonmoving party, and (4) the public interest favors such relief.” Id. (quoting Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir.2004)). Generally, a panel entertaining a preliminary injunction appeal decides only whether the district court abused its discretion in ruling on the request for relief and does not go into the merits any further" }, { "docid": "10030722", "title": "", "text": "FISHER, Circuit Judge: We revisit in this appeal the longstanding principle that federal complaints plead claims, not causes of action or statutes or legal theories. Blackie Alvarez (“Alvarez”) brought suit alleging that prison officials substantially burdened his religious exercise by denying him various accommodations. Those officials (“appellees”) now insist that Alvarez’s failure to specifically plead in his complaint a violation of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), see 42 U.S.C. § 2000cc-l, bars his argument that the district court erred in not analyzing his religious exercise claims under RLUIPA, which establishes a more protective standard than does the First Amendment. They are plainly incorrect. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part and remand. BACKGROUND In June 2004, Alvarez, then an inmate at the Oregon State River Correctional Institution, filed a pro se complaint seeking redress for violations of the “First [and] Fourteenth Amendments” on the part of prison officials. Alvarez alleged that they “ ‘burden[ed] substantially’ ... his religion” by denying him the “right to participate and practice the Sweat Lodge Ceremony and Sacred Pipe Ceremony” and by making it “difficult if not impossible to communicate with any of his tribe[’]s religious representatives.” He also alleged that they forbade him from wearing a headband, consuming tobacco for ceremonial purposes and participating in group worship. Four months later, Alvarez supplemented his complaint with a self-styled “Motion in Support of Original Complaint with Law.” Alvarez asserted there that the district court had “supplemental jurisdiction” of his free exercise claims under “Religious Land Use and Institutionalized Persons Act, 42 U.S.C.A. § 2000cc,” and other civil rights statutes. Appellees thereafter filed for summary judgment in December 2004. They argued that although the prison’s policies burdened Alvarez’s constitutional free exercise rights, they were “reasonably related to legitimate penological interests” and consequently satisfied the standard set forth in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Responding directly to appellees’ reliance on Twmer, Alvarez opposed their “concluso-ry” assertions of the governmental interest in security and safety," }, { "docid": "8238304", "title": "", "text": "Title Co., 551 F.3d 634, 639 (7th Cir.2008). 2. Mr. Ortiz also contends that the allegations in his complaint support a claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a). RLUIPA prohibits prisons that receive federal funds from imposing a substantial burden on a prisoner’s religious exercise unless the burden furthers a compelling governmental interest and does so by the least restrictive means. See 42 U.S.C. § 2000cc-1(a); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir.2008). Mr. Ortiz’s complaint alleges that Chief Downey’s actions imposed a substantial burden on his ability to exercise his religion; this is all that is required to state a claim under RLUIPA. See Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir.2008) (holding that a prisoner who complained that officials substantially burdened his religious exercise advanced a claim under RLUIPA “because his complaint and subsequent filings provided appellees with ‘fair notice’ of that claim, even though the statute was not cited in the complaint itself’); Hammons v. Saffle, 348 F.3d 1250, 1258-59 (10th Cir.2003) (remanding with instructions to construe a pro se prisoner complaint in light of RLUIPA even though the complaint alleged only a violation of “his religious freedom rights”). Although Mr. Ortiz’s complaint does not mention RLUIPA specifically, this is not an obstacle to his claim, particularly in light of his status as a pro se litigant. See Alvarez, 518 F.3d at 1157-59; Hammons, 348 F.3d at 1258-59. Our sister circuits have held, and we agree, that a prisoner who does not plead a RLUIPA violation specifically, but does allege unconstitutional restrictions on religious practice, states a claim under the statute. See Alvarez, 518 F.3d at 1157-59; Hammons, 348 F.3d at 1258-59. Litigants need not plead legal theories, and the factual allegations in Mr. Ortiz’s complaint provide fair notice to the defendants of the necessary elements of a RLUIPA claim. See, e.g., Jogi v. Voges, 480 F.3d 822, 826 (7th Cir.2007). Accordingly, on remand the district court should permit Mr. Ortiz to amend his complaint to add a specific claim under RLUIPA, as he is entitled" }, { "docid": "19031327", "title": "", "text": "but stated generally that the other requirements for a preliminary injunction “have been satisfied.” II. 28 U.S.C. § 1292(a)(1) provides us with appellate jurisdiction to entertain interlocutory appeals from orders that grant, deny, or modify injunctions. On appeal, the standard of review of a preliminary injunction issued by a district court is narrow. Unless an abuse of discretion is “clearly established, or an obvious error has ocurred [sic] in the application of the law, or a serious and important mistake has been made in the consideration of the proof, the judgment of the trial court must be taken as presumptively correct.” Premier Dental Products Co. v. Darby Dental Supply Co., Inc., 794 F.2d 850, 852 (3d Cir.1986), quoting Stokes v. Williams, 226 F. 148, 156 (3d Cir.1915). We must consider the following factors in determining whether a preliminary injunction should be issued: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the non-moving party will suffer irreparable harm if the injunction is issued; and (4) the public interest. McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-357 (3d Cir.2007). The franchisees assert that the preliminary injunction was a consent order. There is no evidence of such consent. In fact, the District Court’s order expressly reserved Ford’s right to appeal the order. Ford argues that the District Court erred by finding that the franchisees are likely to succeed on the merits. In reality, Ford is attempting to appeal the partial summary judgment order that declared the surcharge program was a violation of New Jersey’s warranty reimbursement statute. Where a preliminary injunction has been appealed under the collateral order doctrine we have, in some cases, exercised pendant jurisdiction to review an inextricably intertwined partial summary judgment order. Kos Pharmaceuticals v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004). Citing Kos Pharmaceuticals, however, Ford takes it one step further by arguing that we must review the partial summary judgment in this case. Ford is mistaken that we are" }, { "docid": "2972990", "title": "", "text": "the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person- — • (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-l(a). Colvin sought damages, a declaratory judgment, and an injunction based on his original complaint, but none of these forms of relief are available to him. Although the statute permits the recovery of “appropriate relief against a government,” 42 U.S.C. § 2000cc-2(a), this court has recently held that monetary damages are not available under RLUIPA. Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir.2009) (“[T]he Eleventh Amendment bars plaintiffs claim for monetary relief under RLUIPA.”), petition for cert. filed, 78 U.S.L.W. 3065 (U.S. July 22, 2009) (No. 09-109). This leaves Colvin’s requests for declaratory and injunctive relief. But these forms of relief are moot because Colvin’s requests were directed specifically at LMF’s policies and procedures and were not targeted at the MDOC kosher-meal program as a whole. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996) (finding that a prisoner’s request for injunctive relief from prison inspection of his mail was moot because he had been transferred to a different facility that did not search his mail). Accordingly, we affirm the district court’s grant of summary judgment on Colvin’s RLUIPA claim as set forth in his complaint. 2. § 1983 claim Colvin next challenges the district court’s denial of his § 1983 claim. As noted above, any declaratory or injunctive relief that Colvin seeks stemming from his complaint has been mooted by his transfer to a different prison facility. We therefore need consider only whether Colvin is entitled to monetary damages for any alleged violation of his constitutional rights under § 1983. Colvin sued the prison officials in both their individual and official capacities. Although the magistrate judge failed to make mention of it in his second R & R, all of the officials are entitled to Eleventh Amendment immunity on Colvin’s claims for damages against them in their official capacities." }, { "docid": "8782367", "title": "", "text": "case. When the district court dismissed Counts 1 and 4 for failure to exhaust, it stated: “All the other matters and issues, once the Court makes the finding, the failure to exhaust the other matters, become moot and the Court cannot address those. So you will have a right to appeal this decision, Mr. Maddox, but that will be the finding and ruling of this Court.” The court made the following entry: “The Court after hearing argument from parties, hereby GRANTS the Motion for Summary Judgment, finding that the plaintiff failed to exhaust all administrative remedies by failing to name] ] Love, Gar-nett and Ryker in his grievances!.] The Court finds that all other matters are Moot, and advises the plaintiff of his appeal rights.” The court then entered judgment, dismissing Counts 2 and 3 with prejudice and Counts 1 and 4 without prejudice. The court could have at that point declined to exercise supplemental jurisdiction over Maddox’s state law claims, but it didn’t do that. Instead, it in effect dismissed those claims as moot. Satisfied that our jurisdiction is secure, we move on to the merits. We can quickly dispose of several of Maddox’s claims. Maddox’s prayers for injunctive relief are moot because he is no longer an inmate at Lawrence. See Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.2009). Maddox has not shown a realistic possibility that he will again be incarcerated in the same state facility and therefore be subject to the actions of which he complains here. As such, “[a]ny relief that our judgment might permit would be purely speculative in nature.” See id. Further, the defendants are immune from suit under § 1983 for monetary damages in their official capacities. See Brown v. Budz, 398 F.3d 904, 917-18 (7th Cir.2005) (“To the extent [the plaintiff] seeks monetary damages from defendants acting in their official capacity, those claims ... are dismissed as they are barred by the Eleventh Amendment.”). Maddox’s RLUIPA claim also fails. Sovereign immunity shields state officials from monetary damages in their official capacity under RLUIPA. See Sossamon v. Texas, — U.S. -," }, { "docid": "14261497", "title": "", "text": "beans, roasted and ground to ensure peak flavor, then packaged to lock in optimum freshness.” (Id. at 3) III. STANDARD OF REVIEW A. Preliminary Injunction Traditional rules of equity apply to requests for injunctive relief. See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). “The decision to grant or deny ... injunctive relief is an act of equitable discretion by the district court.” Id. The grant of a preliminary injunction is considered an “extraordinary remedy” that should be granted only in “limited circumstances.” See Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004) (citation omitted). The moving party for injunctive relief must establish: “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Id. (citation omitted). The burden lies with the movant to establish every element in its favor or the grant of a preliminary injunction is inappropriate. See P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir.2005). If either or both of the fundamental requirements — -likelihood of success on the merits and probability of irreparable harm if relief is not granted — are absent, an injunction cannot issue. See McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 523 (3d Cir.1994). B. Motion to Dismiss for Failure to State a Claim In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair" }, { "docid": "19031328", "title": "", "text": "non-moving party will suffer irreparable harm if the injunction is issued; and (4) the public interest. McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-357 (3d Cir.2007). The franchisees assert that the preliminary injunction was a consent order. There is no evidence of such consent. In fact, the District Court’s order expressly reserved Ford’s right to appeal the order. Ford argues that the District Court erred by finding that the franchisees are likely to succeed on the merits. In reality, Ford is attempting to appeal the partial summary judgment order that declared the surcharge program was a violation of New Jersey’s warranty reimbursement statute. Where a preliminary injunction has been appealed under the collateral order doctrine we have, in some cases, exercised pendant jurisdiction to review an inextricably intertwined partial summary judgment order. Kos Pharmaceuticals v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004). Citing Kos Pharmaceuticals, however, Ford takes it one step further by arguing that we must review the partial summary judgment in this case. Ford is mistaken that we are under any such requirement. 28 U.S.C. § 1291. Ford’s citation to Kos Pharmaceuticals glosses over a critical distinction between that case and this one. That case focused upon an alleged trademark infringement in which the plaintiff claimed non-monetary injury. Kos Pharmaceuticals, 369 F.3d at 708. In fact, non-mone tary damages were at issue in the entire line of cases from our court leading up to Kos Pharmaceuticals, except where a statute specifically authorized a preliminary injunction under other criteria. This is also true of decisions from Courts of Appeal in other circuits. We reaffirm that we have pendant jurisdiction to review underlying orders that are inextricably intertwined with a preliminary injunction, and that in such a review it may be necessary to consider whether the movant is likely to succeed on the merits. In this case, however, we do not need to reach the issue of whether the franchisees are likely to succeed on the merits, making the exercise of pendant jurisdiction unnecessary. We have repeatedly insisted that “the preliminary injunction device should not be" }, { "docid": "14222134", "title": "", "text": "preliminary screening of Kuperman’s complaint, the district court jettisoned his official capacity claims except to the extent they sought injunctive relief — a ruling Kuperman does not contest here. Kuperman concedes that his release moots his injunctive relief requests. See, e.g., Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir.2009). That leaves us with this: § 1983 and RLUIPA claims against Prison Officials in their personal capacities seeking monetary and declaratory relief. Personal Capacity Claims A claim is moot only if no relief is available. See Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447. Prison Officials appear to concede that Kuperman’s claims for monetary relief survive, given that their motion to dismiss mentions Kuperman’s request for monetary relief but asks us to dismiss only his claims for injunctive and declaratory relief. Indeed, as a former prisoner alleging a constitutional violation that occurred during his incarceration, Kuperman may obtain nominal and punitive damages under § 1983. See, e.g., Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir.2004); Thompson v. Carter, 284 F.3d 411, 416 (2d Cir.2002); Searles v. Van Bebber, 251 F.3d 869, 879, 881 (10th Cir.2001). Because some relief is available on Kuperman’s claims, they are not moot. See Powell v. McCormack, 395 U.S. 486, 496 n. 8, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Chico Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20, 36 (1st Cir.2011) (citing Church of Scientology, 506 U.S. at 13, 113 S.Ct. 447). For the same reason, Prison Officials’ argument that Kuperman is no longer entitled to declaratory relief is beside the point. Our question is whether Kuperman can obtain some relief, and he can. Therefore, his claims are not moot. We grant Prison Officials’ motion to dismiss Kuperman’s claims seeking injunctive relief, and analyze his remaining claims on the merits. STANDARD OF REVIEW We review orders granting summary judgment de novo, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the nonmoving party. Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 37 (1st Cir.2007) (citing Iverson v. City of Boston, 452 F.3d 94, 98 (1st" }, { "docid": "2199465", "title": "", "text": "questions still needing to be resolved. .Johnson, 385 F.3d at 521 (holding that a prisoner who suffered similar harassment on multiple occasions had sufficiently exhausted even though he had not filed new grievances at each instance of harassment). . See id. . Id. (citing Aiello v. Litscher, 104 F.Supp.2d 1068, 1074 (W.D.Wis.2000)). . TDCJ asks us to apply an even narrower reading of Moussazadeh’s complaint. It suggests that his original grievance only requested \"access” to kosher food. That strained understanding of the complaint does not comport with its clear language. Moussazadeh explicitly requested kosher meals served by the prison kitchen. . See, e.g., Robinson v. Wheeler, 338 Fed.Appx. 437, 438 (5th Cir.2009) (upholding dismissal for lack of exhaustion where prisoner was told that he could re-file a grievance before the suit was initiated); Simkins v. Bridges, 350 Fed.Appx. 952, 953 (5th Cir.2009) (upholding dismissal for lack of exhaustion where prisoner did not appeal denial of his initial grievance as required). . Mayfield v. TDCJ, 529 F.3d 599, 613 (5th Cir.2008) (stating that a RLUIPA inquiry \"normally requires two separate assessments, first whether the burdened activity is 'religious exercise,’ and second whether that burden is ‘substantial’ ”). . McAlister, 348 Fed.Appx. at 936. See also Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir.2004) (\"We recognize that our test requires a case-by-case, fact-specific inquiry to determine whether the government action or regulation in question imposes a substantial burden on an adherent's religious exercise.”). . See United States v. Ballard, 322 U.S. 78, 86-87, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (\"Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.”). . Moussazadeh’s request for reassignment to a different district judge on remand is DENIED. Reassignment is an \"extraordinary” remedy that is \"rarely invoked.” Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir.1997). The district judge has handled this matter capably and without bias, and we are confident she will continue to do so. RHESA H. BARKSDALE, Circuit Judge, dissenting in part: Amazingly, akin to the adage about “inmates running the" }, { "docid": "10030735", "title": "", "text": "or by statute. See Swierkiewicz, 534 U.S. at 513, 122 S.Ct. 992. Accordingly, we hold that RLUIPA claims need satisfy only the ordinary requirements of notice pleading, and that a complaint’s failure to cite RLUIPA does not preclude the plaintiff from subsequently asserting a claim based on that statute. Under this pleading standard, it is sufficient that the complaint, alone or supplemented by any subsequent filings before summary judgment, provide the defendant fair notice that the plaintiff is claiming relief under RLUIPA as well as the First Amendment. Having concluded that the district court erred in not addressing Alvarez’s RLUIPA claim, we vacate its grant of summary judgment as to his religious exercise claims without reaching his constitutional arguments in support of reversal. See Anchustegui v. Dep’t of Agric., 257 F.3d 1124, 1129 (9th Cir.2001). This panel shall retain jurisdiction over any subsequent appeals in this matter. Alvarez shall recover his costs on appeal. AFFIRMED IN PART AND REVERSED IN PART; REMANDED. . Alvarez also claimed that he was deprived of access to legal materials in violation of Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). We affirm the district court's grant of summary judgment as to this claim because Alvarez has not \"allege[d] injury, such as inability to file a complaint or defend against a charge” resulting from deficiencies in access. Jones v. Blanas, 393 F.3d 918, 936 (9th Cir.2004). Failure to show that a “nonfrivolous legal claim had been frustrated” is fatal to his Bounds claim. Lewis v. Casey, 518 U.S. 343, 353 & n. 4, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). . In addition to declaratory and injunctive relief, Alvarez sought a total of $55,000 in damages, so his subsequent release from custody has not mooted this action. See Rhodes v. Robinson, 408 F.3d 559, 566 n. 8 (9th Cir.2005). . As we noted in Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir.2008), Freemans requirement that an inmate must show that the prison had burdened \"conduct mandated by his faith” to state a viable free exercise claim under the" }, { "docid": "406916", "title": "", "text": "claim, official-capacity defendants Cate and Lattimore are properly named in their state constitutional claim, as are the respective entities that employ them— CDCR and CCWF. Also consistent with previous analyses, Plaintiffs lack standing to bring their claim against the SPB, DCP, Sayles-Owen, and Smith. F. District Court’s Denial of Leave to Amend Plaintiffs’ Complaints Plaintiffs appeal the district court’s denial of their motion for leave to amend each of their three complaints. Because we remand Plaintiffs’ Establishment Clause and state constitutional claims, we only address their appeal with respect to the remaining causes of action in the First Amended Complaint. The district court’s denial of a motion to amend a complaint is reviewed for an abuse of discretion. See Ordonez v. Johnson, 254 F.3d 814, 815-16 (9th Cir. 2001). A district court may deny leave to amend when amendment would be futile. Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir.2000). In the First Amended Complaint, Plaintiffs allege that defendants violated their rights under the Free Exercise Clause, Equal Protection Clause, and RLUIPA, by refusing to hire a paid full-time Wiccan chaplain. Because we hold that Plaintiffs’ access to and receipt of religious services provided by full-time chaplains of other faiths and a volunteer Wiccan chaplain belies their claims, further amendment would be futile. The district court therefore did not abuse its discretion in denying Plaintiffs leave to amend the First Amended Complaint. IV. CONCLUSION For the foregoing reasons, the district court’s dismissal of Plaintiffs’ claims under the Free Exercise Clause, Equal Protection Clause, and RLUIPA is affirmed. Because Plaintiffs sufficiently pleaded facts supporting a plausible claim under the Establishment Clause and the California State Constitution, we remand both claims to the district court for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . Hartmann’s release from CDCR custody renders moot her claims for declaratory and injunctive relief. See Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir.2012) (claims seeking in-junctive and declaratory relief generally become moot upon inmate's release from custody because inmate is no longer subject to the challenged" }, { "docid": "23300884", "title": "", "text": "OPINION EBEL, Circuit Judge: The question presented here is what relief is available to Plaintiff-Appellant Blackie Alvarez, a former inmate in the Oregon Department of Corrections (“ODOC”), on claims alleging that ODOC employees substantially burdened the practice of his religion in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5. Money damages are not available under RLUIPA against state officials sued in their official capacity. And, because the ODOC has released Alvarez from its custody, his claims for declaratory and injunctive relief are moot. Therefore, having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district court’s dismissal of Alvarez’s claims. BACKGROUND In June 2004, Alvarez sued several ODOC officials in their official capacity, alleging, among other things, that they were substantially burdening Alvarez’s practice of his Native American religion. The district court granted the ODOC officials summary judgment, but this court remanded Alvarez’s claims for further consideration under RLUIPA. Alvarez v. Hill, 518 F.3d 1152, 1154-55, 1159 (9th Cir.2008). On remand, the district court again granted the ODOC officials summary judgment and dismissed Alvarez’s RLUIPA claims, ruling: 1) money damages are not available under RLUIPA against state officials sued in their official capacity; and 2) in light of Alvarez’s release from ODOC custody, his claims for declaratory and injunctive relief are moot. Alvarez appeals, challenging both determinations. DISCUSSION I. Oregon’s sovereign immunity bars Alvarez’s RLUIPA claims for money damages against Defendants sued in their official capacity We review de novo questions of Eleventh Amendment sovereign immunity. See Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir.2010). The Supreme Court, in Sossamon v. Texas, held that money damages under RLUIPA are not available against states because of their sovereign immunity. See - U.S. -, 131 S.Ct. 1651, 1655, 179 L.Ed.2d 700 (2011). And, “[f|or sovereign-immunity purposes, we treat [a] suit against state officials in their official capacities as a suit against the state.” Holley, 599 F.3d at 1111. Therefore, the district court did not err in dismissing Alvarez’s claims for money damages. II. Alvarez’s claims for declaratory and" } ]

[ { "docid": "22745127", "title": "", "text": "28 U.S.C. § 1361. The district court, in transferring the taxpayer’s action to the United States Claims Court, found that it involved only contract issues concerning whether the IRS waived the taxpayer’s compliance with the statute of limitations in reaching the settlement and whether in the absence of such a waiver a mutual mistake as to the existence of the taxpayer’s refund claim rights should provide a ground for rescission. It opined that, because the Tucker Act provided an adequate forum in which the taxpayer’s contract dispute could be resolved, a federal district court had no jurisdiction to entertain this mandamus action. The district court erred in transferring the action. 28 U.S.C. § 1361 provides: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. The propriety of entertaining a petition for writ of mandamus in the federal system is, of course, well defined. It may be invoked only where three elements co-exist: (1) the petitioner has shown a clear right to the relief sought; (2) the respondent has a clear duty to do the particular act requested by the petitioner; and (3) no other adequate remedy is available. Green v. Heckler, 742 F.2d 237, 241 (5th Cir.1984); Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.), cert. denied, 449 U.S. 832, 101 S.Ct. 100, 66 L.Ed.2d 37 (1980). In other words, the petitioner must demonstrate that his right to the issuance of the writ is “clear and indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980); Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); In re Ralston Purina Co., 726 F.2d 1002, 1004 (4th Cir.1984). Mandamus against a public official will not lie unless the alleged duty to act involves a mandatory or ministerial obligation which is so plainly prescribed as to be free of doubt. See Nova Stylings, Inc. v. Ladd," } ]

[ { "docid": "22777890", "title": "", "text": "to Cherrix’s habeas petition and assert the defense of procedural default; and (4) grant Cherrix’s request for DNA analysis in spite of his failure to request such testing in state court. The party seeking a writ of mandamus must satisfy the conditions of a rigorous test, demonstrating each and every one of the following requirements: (1) he has a clear and indisputable right to the relief sought; (2) the responding party has a clear’ duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he desires; and (5) the issuance of the writ will effect right and justice in the circumstances. Oncology Assocs., 198 F.3d at 511 (citing, inter alia, Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (recognizing that, in order to ensure “the writ will issue only in extraordinary circumstances, ... the party seeking issuance of the writ [must] have no other adequate means to attain the relief’ sought)). The Commonwealth faces the same problem in seeking a writ of mandamus that the Warden faced in bringing an interlocutory appeal—other adequate means exist to attain the relief it desires. That is, the district court’s January 9, 2001 Order may be reviewed on appeal from final judgment, with no conceivable risk of harm to the Commonwealth. We have consistently held, as we are constrained to do today, that we will not issue a writ of mandamus under such circumstances. See, e.g., In re Catawba Indian Tribe of South Carolina, 973 F.2d 1133, 1137 (4th Cir.1992) (denying a writ of mandamus to compel the district court to grant a class certification where the issue was reviewable on appeal from final judgment); In re Int’l Precious Metals Corp., 917 F.2d 792, 792, 794 (4th Cir.1990) (declining to issue a writ requiring the district court to transfer the case in order to enforce a forum selection clause, because the petitioner could “appeal the ... court’s denial of transfer after final judgment”). Moreover, we are cognizant" }, { "docid": "22799547", "title": "", "text": "mandamus, however, is an original proceeding and, thus, is different from the normal appellate process in all of those respects. These differences become especially significant in death penalty cases. We do not know whether Kelly’s ha-beas petitions have merit; we lack the benefit of the historical hindsight that we usually possess when we review a case after the facts have been developed; and the briefing before us has necessarily been limited to those issues raised by the State in its petition for mandamus. Because of the difficult position in which a mandamus petition places the court of appeals, we have repeatedly characterized mandamus as an “extraordinary” or “drastic” remedy. E.g., Calderon v. United States Dist. Court (Gordon), 107 F.3d 756, 761 (9th Cir.), cert. denied, — U.S. -, 118 S.Ct. 265, 139 L.Ed.2d 191 (1997); Armster v. United States Dist. Court, -792 F.2d 1428, 1481 (9th Cir.1986). The Supreme Court has admonished that mandamus must not become a substitute for the normal appellate process. Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). To provide guidance for when mandamus may be permissible, we have adopted a five-part test. In Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977), we delineated the five factors that support the issuance of a writ of mandamus: (1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way that is not correctable on appeal____ (3) The district court’s order is clearly erroneous as a matter of law. (4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court’s order raises new and important problems, or issues of law of first impression. Id. at 654-55 (citations omitted). We have repeatedly employed the five Bauman factors in mandamus cases, e.g., Taiwan v. United States" }, { "docid": "5970249", "title": "", "text": "otherwise discretionary' motions, (3) entry of an order which effectively nullifies one of the Federal Rules of Civil Procedure; (4) rulings on matters of law which plainly conflict with controlling precedents, (5) entry of an order without appropriate procedural safeguards, (6) limitations on discovery likely to have a major impact on the trial, (7) entry of rulings in conflict with rulings of other district courts in the same circuit, and (8) entry of orders making a long and burdensome retrial necessary. “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations”, Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976), and the writ should issue only when the right to such relief is “clear and indisputable.” United States ex rel. Bernardin v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899). It is not to be used as a substitute for an appeal, or to control the decision of the trial court in discretionary matters. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953); Miller v. Connally, 354 F.2d 206, 208 (5th Cir. 1965). Mandamus may issue, however, if a ruling on a question of law is so “egregiously erroneous” that the action could be deemed a “usurpation of power.” In re Estelle, 516 F.2d 480, 488 (5th Cir. 1975), cert. denied, 426 U.S. 925, 96 S.Ct. 2637, 49 L.Ed.2d 380 (1976) (Godbold, J., concurring in part); see also Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). The party seeking the writ must have no other adequate means of attaining the relief that he desires. Kerr v. United States District Court, supra, 426 U.S. at 403, 96 S.Ct. 2119; Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). Plaintiff’s contentions generally cover the spectrum. First, he asserts that the district court abused its discretion in ruling on several motions. We will not review these discretionary matters via petition for writ of mandamus." }, { "docid": "16784428", "title": "", "text": "a writ of mandamus from this court to require Judge Merhige to disqualify himself. While we do not relish the mention by name of so many attorneys involved in an unpleasant matter, clarity dictates such action here. The number of Daikon Shield claimants involved in the Robins bankruptcy is simply too large as a practical matter to refer to those claimants by their names and various positions on this mandamus petition. Messrs. Bragg and Post have filed the instant petition on behalf of their clients, who were limited intervenors in the Richmond Daikon Shield product liability actions. The newly appointed Claimants’ Committee, through its local counsel Mr. Stanley K. Joynes, opposes the petition for the writ of mandamus. The Unsecured Creditors’ Committee, the Committee of Equity Security Holders and the United States have all filed papers opposing issuance of the writ. The granting of a writ of mandamus is a drastic remedy to be used only in extraordinary situations. Kerr v. United States, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976). A writ of mandamus will not issue when all that is shown is that the district court abused its discretion when making the challenged ruling. In re: Ralston Purina Co., 726 F.2d 1002, 1003 (4th Cir.1984). The party seeking mandamus relief carries the heavy burden of showing that he has “no other adequate means to attain the relief he desires” and that his right to such relief is “clear and indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980), quoted in In re: Ralston Purina Co. at 1004; In re: International Business Machines Corp., 618 F.2d 923, 927 (2d Cir.1980). Courts are extremely reluctant to-grant a writ of mandamus. In re: Ford Motor Co., 751 F.2d 274, 275 (8th Cir.1984). Such a decision is largely a matter of discretion with the court addressing the application for the writ. Kerr, supra, 426 U.S. at 403, 96 S.Ct. at 224. A district judge’s refusal to disqualify himself can be reviewed in this circuit by way of a" }, { "docid": "22828502", "title": "", "text": "their complaint, the plaintiffs present one claim relevant to their petition: an action under section 301 of the LMRA, 29 U.S.C. § 185, for breach of CBAs. According to the complaint, the plaintiffs seek declaratory relief, injunctive relief, and damages. The plaintiffs contend that their claim for breach of the CBAs is an action at law, and that the damages they seek are legal relief. The sole issue presented by the petition is: Do the plaintiffs assert legal rights, entitling them to a jury trial under the Seventh Amendment, or are their claims only equitable? For the reasons set forth below, we DENY the plaintiffs’ request for a writ of mandamus. ANALYSIS Standard for granting a writ of mandamus The All Writs Statute, 28 U.S.C. § 1651 (1980), vests in this court the power to issue a writ of mandamus. In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 303 (6th Cir.1984); see also Beacon Theatres v. Westover, 359 U.S. 500, 511, 79 S.Ct. 948, 957, 3 L.Ed.2d 988 (1959). Because mandamus is a “drastic remedy ‘to be invoked only in extraordinary situations,’ ” In re Mechem, 880 F.2d 872, 874 (6th Cir.1989) (quoting Kerr v. United States Dist. Ct., 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976)), a party seeking such a writ usually must satisfy two conditions: (1) that there are no other adequate means for the party to obtain the desired relief, and (2) that the party has a “clear and indisputable” right to issuance of the writ. Id. (quoting Allied Chem. Corp. v. Daiflon Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam)). Where the constitutional right to a jury trial is involved, however, some courts, relying principally on Beacon Theatres, have held that neither of these two preconditions needs to be met. E.g., In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir.) (“When the writ is used for [preservation of the right to trial by jury], strict compliance with the stringent conditions on the availability of the writ (including the requirement of proving" }, { "docid": "2014786", "title": "", "text": "has separately appealed from the district court’s grant of summary judgment on his other claims (No. 88-2149) and LINA has cross-appealed (No. 88-2216), but these appeals are not now before this court. II We begin by considering our authority to issue a writ of mandamus. It is well established that “the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam) (Allied Chemical); see, e.g., Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). In Allied Chemical, the Court explained that mandamus should issue only in extraordinary circumstances because “[i]ts use has the unfortunate consequence of making a district court judge a litigant, and it indisputably contributes to piecemeal appellate litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule appellate review should be postponed until after final judgment has been rendered by the trial court. A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would “run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.” 449 U.S. at 35, 101 S.Ct. at 190 (quoting Kerr v. United States District Court, 426 U.S. at 403, 96 S.Ct. at 2124). To avoid any erosion of the final judgment rule, the Court has required a party seeking mandamus to make two showings: (1) there are “no other adequate means to attain the relief ... desire[d],” and (2) that the “right to issuance of the writ is ‘clear and indisputable.’ ” Allied Chemical, 449 U.S. at 35, 101 S.Ct. at 190 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)); see also In re Ford Motor Co., 751 F.2d 274, 276 (8th Cir.1984) (mandamus denied because moving party “failed to show" }, { "docid": "23301769", "title": "", "text": "plaintiffs-petitioners, all petitioners contend that their mandamus petitions are not moot, arguing principally that paragraphs 4(b) and 7 of the May 11 Order exceed the authority of the district court. They contend that the court should be directed, at the least, to excise those paragraphs from the Order. Whether by mandamus or by treatment of the mandamus petitions as appeals from the May 11 Order, we agree. A writ of mandamus is available “only to confine an inferior court to a lawful exercise of its prescribed authority, or to compel it to exercise its authority when it is its duty to do so.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 18, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also In re IBM, 687 F.2d 591, 603 (2d Cir.1982) (granting mandamus where district court had failed for nearly three months to rule on a stipulated motion for dismissal, the legal issues were “clear-cut,” and several concerns “emphasize[d] the importance of a prompt disposition of th[e] matter and of the litigation”). Further, mandamus is an extraordinary remedy, and the writ normally is not to be granted if the relief sought could be obtained by means of a direct appeal. See, e.g., Helstoski v. Meanor, 442 U.S. 500, 505-08, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979); Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). An order that is beyond the scope of the district court’s authority is of course normally remediable through a direct appeal. As a procedural matter, the district court’s May 11 Order appears to be a final order from which an appeal could be taken; and arguably the issuance of that order makes consideration of the petition for mandamus inappropriate. In an ordinary case, if a party sought mandamus to compel the district court to approve an unopposed attempt at voluntary dismissal of the action and the court, prior to argument on the mandamus petition, entered a final judgment dismissing the action, we would likely dismiss the petition as moot, either because all of the" }, { "docid": "13629933", "title": "", "text": "decision, coupled with the injunction barring them from participating in the Westgate Action, has effectively forced them to “opt-out” of the Westgate Class. This result, they contend, has denied them of their substantive due process right to participate in the Westgate Action. It is well settled that a writ of mandamus is a drastic remedy confined to rare situations. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (“Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.”); In re BellSouth Corp., 334 F.3d 941, 954 (11th Cir.2003) (“Mandamus is an extraordinary remedy requiring demonstrable injustice or irreparable injury.”). Courts are reluctant to issue the writ due to the potential for abuse: “Mandamus is not to be used as a subterfuge to obtain appellate review that is otherwise foreclosed by law.” BellSouth, 334 F.3d at 951. To foreclose the argument that it constitutes an abuse of the writ, the mandamus petition must satisfy three conditions. First, because the entry of a final judgment must ordinarily precede appellate review, the petitioner must demonstrate that “no other adequate means” exists to obtain the relief desired. Kerr v. U.S. Dist. Ct. for N.D. Calif., 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Second, the petitioner must demonstrate a “clear and indisputable right” to the issuance of the writ. See BellSouth, 334 F.3d at 953-54 (“Significantly, a party is not entitled to mandamus merely because it shows evidence that, on appeal, would warrant reversal of the district court.”); United States v. Denson, 603 F.2d 1143, 1147 n. 2 (5th Cir.1979) (“[T]he writ will not issue to correct a duty that is to any degree debatable: the trial court must be acting beyond its jurisdiction or in a fashion about which discretion is denied it.”). Third, the issuing court must be persuaded that issuing the writ is within its discretion. Kerr, 426 U.S. at 403, 96 S.Ct. 2119. Given the record before us, we cannot conclude that the Dealers have surmounted the requisite" }, { "docid": "9794854", "title": "", "text": "the Vice President be dismissed as a defendant.” Emergency Pet. for Writ of Mandamus at 20. The Vice President also filed a notice of appeal from the district court’s order denying the motion to dismiss and from the various discovery orders. Plaintiffs opposed the mandamus petition and filed a motion to dismiss the interlocutory appeal. We granted an administrative stay and heard oral argument on April 17, 2003. Now before us are the petition for a writ of mandamus and the plaintiffs’ motion to dismiss the appeal. We address each in turn. II. In considering the petition for a writ of mandamus, we are bound by well-established rules of both the Supreme Court and this court. “The remedy of mandamus,” the Supreme Court has explained, “is a drastic one, to be invoked only in extraordinary situations.” Kerr v. United States Dist. Court, 426 U.S. 394, 401, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976) (internal citations omitted). “[0]nly exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Emphasizing the rarity of mandamus relief, the Supreme Court has noted that “our cases have answered the question as to the availability of mandamus ... with the refrain: What never? Well, hardly ever!”’ Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190-91, 66 L.Ed.2d 193 (1980) (emphasis in original). In Kerr, the Supreme Court explained the policy underlying the limited nature of mandamus relief: [P]articularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt adminis tration of justice to discourage piecemeal litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule ‘appellate review should be postponed ... until after final judgment has been rendered by the trial court.’ A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be" }, { "docid": "8971948", "title": "", "text": "drastic remedy and should be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Cumberland Cty. Hosp. Sys., Inc. v. Burwell, 816 F.3d 48, 52 (4th Cir. 2016). A petitioner must show that first, he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks omitted). Second, a petitioner must show that he has a “clear and indisputable” right to the relief sought. Id. at 381, 124 S.Ct. 2576. Finally, “even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id. The Appellants appear to contend that we should grant the motion to convert their appeal but not rule on the merits of the petition, instead allowing for a reinstatement of the briefing schedule. But this would amount to a backdoor entrance to an interlocutory appeal, in clear contravention of I.R.C. § 7482(a) and 28 U.S.C. § 1291, which thus would strongly suggest that a writ would not be “appropriate under the circumstances.” See Cheney, 542 U.S. at 381, 124 S.Ct. 2576. In any event, the standards for evaluating the Appellants’ argument in a normal appeal versus a petition for writ of mandamus are entirely different: in seeking a writ of mandamus, it is not enough that the Appellants’ arguments be correct — they must be indisputably correct. See id. But two courts have ruled contrary to the Appellants’ arguments, notwithstanding their differing rationales, see Kuretshi, 755 F.3d at 938-45; Battat, 2017 WL 449951, at *12-16, and no court has ruled in favor of the Appellants’ arguments. As a result, even if the Appellants’ arguments were ultimately found to be correct, they are not “clear[ly] and indisputably]” correct. See Cheney, 542 U.S. at 381, 124 S.Ct. 2576. Thus, we conclude the Appellants are not entitled to a writ of mandamus. Accordingly, we grant the Commissioner’s motion to dismiss and" }, { "docid": "22711704", "title": "", "text": "chance that the litigation at hand might be speeded, or a ‘particular injustie[e]’ averted, Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988), by a prompt appellate court decision.” Digital Equip., 511 U.S. at 868, 114 S.Ct. 1992 (alteration in original). Ultimately, the order of the district court is a discovery order like any other, and must be treated the same for jurisdictional purposes. C. Mandamus The Government filed a petition for a writ of mandamus as an alternate basis for jurisdiction. Mandamus is a “drastic” remedy, “to be invoked only in extraordinary situations.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam). Mandamus “has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (internal quotation marks omitted). In short, “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy.” Id. (internal quotation marks omitted). In order to preserve the extraordinary nature of the mandamus remedy, the Supreme Court has set forth two conditions that must be satisfied as a predicate to mandamus jurisdiction. First, “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires.” Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); see Will, 389 U.S. at 97, 88 S.Ct. 269 (noting that “[m]andamus ... may never be employed as a substitute for appeal in derogation of ... clear policies” favoring delay of review until final judgment). Second, the petitioner bears “the burden of showing that [his] right to issuance of the writ is clear and indisputable.” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (internal quotation marks omitted). The Government has not established" }, { "docid": "8971947", "title": "", "text": "Cir. 2016) (Nos. 15-1637/1914); United States v. Phillips, 420 Fed.Appx. 269, 269 (4th Cir. 2011) (No. 10-7527); United States v. Law, 354 Fed.Appx. 738, 738 (4th Cir. 2009) (No. 09-7288). Furthermore, a court does not enjoin itself. Cf. Penoro v. Rederi A/B Disa, 376 F.2d 125, 129 (2d Cir. 1967). Thus, because the Tax Court’s order is not a final decision and is not an appeal-able collateral order, a marginal order within the twilight zone of finality, or an order that had the effect of denying an injunction, we conclude that we do not have jurisdiction over the Appellants’ appeal, and the appeal is subject to dismissal. The Appellants have also filed a motion to convert their appeal into a petition for writ of mandamus. “A district judge’s refusal to disqualify himself can be reviewed in this circuit by way of a petition for a writ of mandamus.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). Thus, we grant the motion and proceed to the merits of the petition. Mandamus relief is a drastic remedy and should be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Cumberland Cty. Hosp. Sys., Inc. v. Burwell, 816 F.3d 48, 52 (4th Cir. 2016). A petitioner must show that first, he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks omitted). Second, a petitioner must show that he has a “clear and indisputable” right to the relief sought. Id. at 381, 124 S.Ct. 2576. Finally, “even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id. The Appellants appear to contend that we should grant the motion to convert their appeal but not rule on the merits of the petition, instead allowing for a reinstatement of the briefing schedule. But this would amount to a backdoor entrance to an" }, { "docid": "20868929", "title": "", "text": "clearly barred collection or assessment of further taxes). In addition to a potential refund suit, O’Meara had a right to appeal the determination from the CDP hearing within 30 days. 26 U.S.C. § 6330(d). O’Meara’s “Notice of Determination” was dated October 17, 2005 (ComplA 16), which gave O’Meara until November 16, 2005 to file his appeal. Because O’Meara failed to file a timely appeal, he failed to take advantage of an available, adequate legal remedy. Thus, he cannot demonstrate irreparable injury. 2. Success on the Merits Mandamus is a drastic remedy, to be invoked only in extraordinary situations. See Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987). A plaintiff may invoke the federal courts’ extraordinary power to issue a writ of mandamus only by proving the co-existence of three elements: (1) the petitioner has shown a clear right to the relief sought; (2) the respondent has a clear duty to do the particular act requested by the petitioner; and (3) no other adequate remedy is available. Lullo, 173 F.3d at 512-13. i. Clear Right to the Relief Sought The IRS must provide taxpayers written notification of the agency’s intent to levy, an opportunity for an independent pre-levy CDP hearing by the IRS Appeals Office, and judicial review of the Appeals Office determination. 26 U.S.C. § 6330; 26 C.F.R. § 301.6330-1 (2000). O’Meara claims he was denied his due process rights because the Appeals Officer denied his request for a face-to-face CDP hearing. Pursuant to federal law, if a person requests a hearing, “such hearing shall be held by the Internal Revenue Service Office of Appeals.” 26 U.S.C. § 6330(b). However, the statute does not require that the hearing be held in person, and the applicable regulations specifically state that these hearings are “informal in nature and do not require ... a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face hearing.” 26 C.F.R. § 301.6330-l(d)(2)Q & A-D6. Further, the IRS Internal Revenue Manual provides that “[f]ace-to-face" }, { "docid": "22273477", "title": "", "text": "have the district court certify the issue for interlocutory appeal. After the district court refused to do so, Lowe petitioned for a writ of mandamus to this court. She asks that we order the district court to return her case to the state court. II. Wal-Mart urges us to deny the petition for writ of mandamus, reminding us that mandamus is a drastic remedy to be used only in extraordinary circumstances. Mandamus is, in fact, a special remedy, only warranted in exceptional cases. Kerr v. Uuited States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976). However, the Supreme Court and this court have long recognized that circumstances such as those before us present a proper case for use of that remedy. That a court operate solely within its statutory jurisdiction is one of the most fundamental premises of our judicial system. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943) (noting that \"traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction\"). If Lowe cannot petition for mandamus, she \"has no other avenue of relief; [she] will be prejudiced in a way not correctable on appeal since [she] will have been forced to endure proceedings in a court that lacks jurisdiction.\" Seedman v. United States Dist. Court, 837 F.2d 413, 414 (9th Cir.1988) (per curiam). In sum, Lowe's petition alleges that the district court had no jurisdiction to reconsider its remand order. Remedying this type of unlawful exercise of jurisdiction, when it occurs, is a traditional, appropriate use of the writ. See, e.g., Three J Farms, Inc. v. Alton Box Bd. Co., 609 F.2d 112, 116 (4th Cir.1979), cert. denied 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980) (granting writ); Seedman, 837 F.2d at 414 (granting writ); In re La Providencia Dev. Corp., 406 F.2d 251, 253 (1st Cir.1969) (granting writ). III. Since mandamus is a proper remedy if" }, { "docid": "2370327", "title": "", "text": "is used to confine a court to a lawful exercise of its jurisdiction or to compel a court to exercise its authority when it is its duty to do so. Kerr v. United States District Court, 426 U.S. 394,402, 96 S.Ct. 2119, 2123,48 L.Ed.2d 725 (1976); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145,147, 98 L.Ed. 106 (1953). Mandamus is a drastic remedy which is available only in extraordinary situations. Kerr v. United States District Court, 426 U.S. at 402, 96 S.Ct. at 2123. It is appropriate only when the petitioner’s right to relief is clear and indisputable. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274,19 L.Ed.2d 305 (1967); Bankers Life & Casualty Co. v. Holland, 346 U.S. at 384, 74 S.Ct. at 148. A petition for a writ of mandamus may not be used as a substitute for appeal, id. at 383, 74 S.Ct. at 148, and is available only if the party seeking relief has no other remedy. See In re Chicago, Rock Island & Pacific Railway, 255 U.S. 273, 275-76, 41 S.Ct. 288, 289-90, 65 L.Ed. 631 (1921); United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir. 1979). The facts of this case do not warrant the invocation of our mandamus power. The petitioner’s right to relief is not so clear, indisputable and compelling as to justify the extraordinary remedy sought. Accordingly, the petition for writ of mandamus is denied and the appeal is dismissed. The defendants’ claims may be fully and adequately reviewed, and the defendants’ rights protected, on direct appeal in the event of conviction in the district court. . The defendants’ concern that, under Rule 4(b), Fed.R.App.P., failure to obtain immediate review will preclude later appellate review is unfounded. Even if the pretrial venue ruling in this case were found to be immediately appeal-able under Cohen, failure to bring an interlocutory appeal would not preclude review of the order by an appeal from a final disposition in the trial court. See United States v. Gaertner, 583 F.2d 308, 310 (7th Cir. 1978), cert," }, { "docid": "13743913", "title": "", "text": "their normal course. 2. Two appeals by the asbestos workers from the bankruptcy court’s orders are pending in the New York district court. 3. The asbestos workers’ motion for relief from the bankruptcy court’s stay order is pending in the bankruptcy court. 4. The bankruptcy court contempt proceeding has been continued with no date having been set for a hearing. ■ II. The petition that sought to have us vacate the stay of proceedings in the district court is denominated a petition for writ of certiorari. Certiorari is a remedy for the correction of errors of law apparent on the record. To the extent, therefore, that the application seeks relief for the correction of such an error, it is properly labelled. Mandamus, on the other hand, is the proper remedy to control procedural decisions of district courts when no other adequate means of seeking relief is available. Under the All Writs Act, however, the form of the writ is of less importance than the substantive question whether an extraordinary remedy is available. In connection with applications for writs of mandamus and orders seeking the stay of district court proceedings, we have developed a body of rules concerning the circumstances under which relief from an interlocutory ruling will be granted. We apply those rules here, principally because, regardless of the title given the writ, what is sought is review of a stay order, review that we have usually accomplished only by appeal under § 1292(b) or by mandamus. Regardless of the form of the writ we base jurisdiction on the All Writs Act, 28 U.S.C. § 1651(a). Mandamus is an extraordinary remedy, which should be invoked only in the clearest and most compelling cases. Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 402-03, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976); In re Sessions, 672 F.2d 564 (5th Cir.1982). In general, the petitioner seeking such an order must show that no other adequate means exists to attain the requested relief and that his right to issuance of the writ is “clear and indisputable.” 426" }, { "docid": "20868928", "title": "", "text": "written against the background of general equitable principles disfavoring the issuance of federal injunctions against taxes, absent clear proof that available remedies at law were inadequate.”); cf. United States v. Am. Friends Serv. Comm., 419 U.S. 7, 11, 95 S.Ct. 13, 42 L.Ed.2d 7 (1974) (inadequacy of available remedies goes to prove irreparable harm). It is well established that under ordinary circumstances, the availability of a refund suit constitutes such an adequate, alternative remedy. Id.; Americans United, 416 U.S. at 762, 94 S.Ct. 2053; Bob Jones Univ., 416 U.S. at 746, 94 S.Ct. 2038; Lullo, 173 F.3d at 510; Int'l Lotto Fund v. Va. State Lottery Dep’t., 20 F.3d 589, 591 (4th Cir.1994). Here, O’Meara can challenge the validity of the assessed tax liability through a refund suit, and he alleges no extraordinary circumstances that bring his case outside the scope of the general rule. Cf. Lullo, 173 F.3d at 510 (circumstances deemed to be extraordinary where the actions of the IRS were “transparently baseless” in pursuing a tax assessment after the statute of limitations clearly barred collection or assessment of further taxes). In addition to a potential refund suit, O’Meara had a right to appeal the determination from the CDP hearing within 30 days. 26 U.S.C. § 6330(d). O’Meara’s “Notice of Determination” was dated October 17, 2005 (ComplA 16), which gave O’Meara until November 16, 2005 to file his appeal. Because O’Meara failed to file a timely appeal, he failed to take advantage of an available, adequate legal remedy. Thus, he cannot demonstrate irreparable injury. 2. Success on the Merits Mandamus is a drastic remedy, to be invoked only in extraordinary situations. See Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987). A plaintiff may invoke the federal courts’ extraordinary power to issue a writ of mandamus only by proving the co-existence of three elements: (1) the petitioner has shown a clear right to the relief sought; (2) the respondent has a clear duty to do the particular act requested by the" }, { "docid": "22822610", "title": "", "text": "plaintiff class. ILANA DIAMOND ROVNER, Circuit Judge, dissenting. The majority today takes the extraordinary step of granting defendants’ petition for a writ of mandamus and directing the district court to rescind its order certifying the plaintiff class. Although certification orders like this one are not immediately appealable (see Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)), the majority seizes upon our mandamus powers to effectively circumvent that rule. Because, in my view, our consideration of Judge Grady’s decision to certify an issue class under Fed.R.Civ.P. 23(c)(4) should await an appeal from the final judgment in Wadleigh, I would deny the writ. The Supreme Court has consistently cautioned that mandamus is a drastic remedy to be employed only in the most extraordinary of cases. See, e.g., Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143-44, 99 L.Ed.2d 296 (1988); Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189-90, 66 L.Ed.2d 193 (1980) (per curiam); Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976). The writ traditionally has been used only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction” and is justified only by “exceptional circumstances amounting to a judicial ‘usurpation of power.’ ” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967); see also Gulfstream Aerospace Corp., 485 U.S. at 289, 108 S.Ct. at 1143-44; Allied Chemical, 449 U.S. at 35, 101 S.Ct. at 190; Kerr, 426 U.S. at 402, 96 S.Ct. at 2123-24. “To ensure that mandamus remains an extraordinary remedy,” the Supreme Court requires the proponents of a writ to “show that they lack adequate alternative means to obtain the' relief they seek,” and that their right to relief is “clear and indisputable.” Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); see also Allied Chemical, 449 U.S. at 35," }, { "docid": "22604743", "title": "", "text": "of loss), so that Lockheed’s counterclaim (which raised the same issue) could be tried by a jury. The district court concluded that the policy established a six-year limitations period, and the court therefore dismissed National’s first request for declaratory relief. The district court, however, concluded that Lockheed did not have a right to a jury trial. The court therefore declined to dismiss National’s second request for declaratory relief, and the court struck Lockheed’s jury demand. Lockheed then filed this petition for a writ of mandamus, arguing that the district court’s ruling improperly deprived it of its right to a jury trial. II. Before considering the merits of Lockheed’s claims, we pause to address a threshold issue raised by National. It is well established that mandamus is a drastic' remedy that should only be used in extraordinary circumstances and may not be used as a substitute for appeal. See, e.g., Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Catawba Indian Tribe of South Carolina, 973 F.2d 1133, 1136 (4th Cir.1992). National contends that Lockheed could raise the jury trial issue on appeal from a final judgment, see First Nat’l Bank of Waukesha v. Warren, 796 F.2d 999, 1006 (7th Cir.1986), and that Lockheed’s resort to mandamus is therefore improper. We disagree. In this circuit, a petition for a writ of mandamus-is the proper way to challenge the denial of a jury trial. See General Tire & Rubber Co. v. Watkins, 331 F.2d 192, 194 (4th Cir.1964) (“We are inclined to the view that General’s petition for Writ of Mandamus is properly before us for consideration since the question presented pertains to a denial of the constitutional right to trial by jury.”); see also Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) (“[T]he right to grant' mandamus to require jury trial where it has been improperly denied is settled.”). Because Lock heed’s petition for a writ of mandamus is a proper vehicle for challenging the district court’s decision, we now turn to the" }, { "docid": "23587093", "title": "", "text": "On January 22, 1999, the Mercury News filed the instant petition for mandamus relief, invoking our jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651. II. Mandamus is a “drastic” remedy, “to be invoked only in extraordinary situations.” Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Calderon v. United States District Court, 134 F.3d 981, 983 (9th Cir.1998) (quoting Kerr), cert. denied sub nom. Calderon v. Taylor, - U.S. -, 119 S.Ct. 274, 142 L.Ed.2d 226 (1998). This court has recognized five factors, commonly known as the “Bauman factors,” that are the analytic starting point in determining whether mandamus should issue: (1) whether the party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires; (2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and (5) whether the district court’s order raises new and important problems, or issues of law of first impression. See Phoenix Newspapers v. United States District Court, 156 F.3d 940, 951-52 (9th Cir.1998); Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir.1977). A petitioner need not satisfy all five factors. “The considerations are cumulative and proper disposition will often require a balancing of conflicting indicators.” Bauman, 557 F.2d at 655. Mandamus review is at bottom discretionary — even where the Bauman factors are satisfied, the court may deny the petition. See Kerr, 426 U.S. at 403, 96 S.Ct. 2119; Phoenix Newspapers, 156 F.3d at 952. The Mercury News contends that mandamus relief is appropriate because the district court’s denial of the motion to intervene was based on an erroneous legal principle — that the public has no right of access to court records in civil cases before judgment. We agree, concluding that a right of access to such records can be derived from" } ]

[ { "docid": "4697243", "title": "", "text": "be final and conclusive upon all persons (including the United States and any officer thereof), unless the importer, consignee, or agent of the person paying such charge or exaction, or filing such claim for drawback, or seeking such entry or delivery, shall, within sixty days after, but not before such liquidation, reliquidation, decision, or refusal, as the case may be, as well in cases of merchandise entered in bond as for consumption, file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. The reliquidation of an entry shall not open such entry so that a protest may be filed against the decision of the collector upon any question not involved in such reliquidation. In his brief filed herein, counsel for the plaintiff makes the following statement: In the instant case it is clear that both the appraisement and the liquidation were made after unreasonable delays, and the originally “estimated” duties must be considered as “liquidated duties”, in view of Section 514 of the Tariff Act of 1930 which provides that all decisions of the Collector are final and conclusive after 60 days, and the evidence adduced herein which clearly shows that the “estimated” rate of duty of 20% ad valorem was the estimate of the Collector or his deputy, and not the estimate of the importer. The estimated duty being a decision of the Collector, it became final and conclusive after 60 days in the absence of any further action on the part of the collector, and in absence of fraud. In E. Fucini & Co., Inc. v. United States, 4 Cust. Ct. 174, C. D. 317, this court stated: * * * “Liquidation” has a well-defined meaning in customs matters, and in Bacardi Corporation v. United States, 11 Ct. Cust. Appls. 252, T. D. 39078, it was said to be— —the final computation and ascertainment of the duties due on merchandise, which computation or ascertainment is based on official reports as to the quantity, character, and value thereof *" } ]

[ { "docid": "22210699", "title": "", "text": "Lawrence, Judge: The merchandise under consideration here consists of hinges, imported with screws, in carboard boxes. The collector of customs, treating the merchandise as entireties, classified it as articles in chief value of base metal and assessed duty thereon at the rate of 22per centum ad valorem, in accordance with the terms of paragraph 397 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802). Plaintiff claims by its protest that the screws should be separately classified pursuant to the eo nomine provision therefor in paragraph 338 of said act (19 U. S. C. § 1001, par. 338), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade (86 Treas. Dec. 121, T. D. 52739), and subjected to duty at the rate of 12% per centum ad valorem, leaving only the hinges to be classified in said paragraph 397. In other words, the claim for a reduction in duty is limited to the screws. The competing provisions of the statutes, so far as pertinent here, read as follows: Paragraph 397 of the Tariff Act of 1930, as modified, sufra: Articles or wares not specially provided for, wb.eth.er partly or wholly manufactured: % :fi * % :j; % Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer: Other (except slide fasteners and parts thereof)_22%% ad val. Paragraph 338 of said act, as modified, supra: Screws, commonly called wood screws, of iron or steel_ 12%% ad val. At the trial, the case was submitted upon an oral stipulation in which the parties agreed as follows: 1. That the merchandise under protest consists of screws packed with hinges in cardboard boxes, 2 hinges and 12 screws to a box, as represented by the sample which I now file with the court, and which may, with the consent of the" }, { "docid": "22633048", "title": "", "text": "Lawrence, Judge: Certain imported electric flatirons were classified by the collector of customs as household utensils pursuant to the provisions of paragraph 339 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 339), and duty was imposed thereon at the rate of 40 per centum ad valorem. Plaintiffs, by their protest, claim that the merchandise should be classified as articles having as an essential feature an electrical element or device and dutiable, accordingly, at 15 per centum ad valorem as provided in paragraph 353 of said act (19 U. S. C. § 1001, par. 353), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802), or, alternatively, that the merchandise consists of articles or wares not specially provided for, composed of metal, and dutiable at 22% per centum ad valorem in paragraph 397 of said act (19 U. S. C. § 1001, par. 397), as modified by said General Agreement on Tariffs and Trade. The Statutes The statutes above cited read, so far as pertinent here, as follows: Paragraph 339 of the Tariff Act of 1930: Par. 339. Table, household, kitchen, and hospital utensils, and hollow or flat ware, not specially provided for: * * * composed wholly or in chief value of copper, brass, steel, or other base metal, not plated with platinum, gold, or silver, and not specially provided for, 40 per centum ad valorem; the foregoing rates shall apply to the foregoing articles whether or not containing electrical heating elements as constituent parts thereof. Paragraph 353 of said act, as modified, supra: * * * articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs; all the foregoing (not including electrical wiring apparatus, instruments, and devices), finished or unfinished, wholly or in chief value of metal, and not specially provided for: * * * * * * * Other articles (except machines for determining the strength of materials or articles in tension, compression, torsion, or shear; flashlights; batteries;" }, { "docid": "5135821", "title": "", "text": "JOHNSON, Judge: These are protests, consolidated at the trial, against the collector's assessment of duty on certain merchandise as nonenumerated manufactured articles at 10 per centum ad valorem under paragraph 1558 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T. D. 52739, and the notification of the President, dated September 18, 1951, T. D. 52827. It is claimed that the merchandise is properly dutiable as hay at $1.25 per ton of 2,000 pounds under paragraph 779 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, directly, or by similitude by virtue of paragraph 1559 of the said tariff act. Other claims made in the protests were not referred to in the briefs and apparently have been abandoned by the plaintiff. The merchandise is described in the invoices as follows: Protest No. Entry No. Description 188794-K 9624 Ground and bagged Ontario Alfalfa Meal 13% 11766 13% Ground & Bagged Ont. Alfalfa Meal 191839-K 16590 %i\" Grind Ontario Alfalfa Meal 16507 Grind Alfalfa Meal 191840-K 13516 Yi\" Grind 13% Ont. Alfalfa Meal The pertinent provisions of the statutes involved herein are as follows: Paragraph 1558 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T. D. 52739, and the notification of the President, dated September 18, 1951, T.D. 52827: Paragraph 779 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802: Paragraph 1559 of the Tariff Act of 1930: Pab. 1559. That each and every imported article, not enumerated in this Act, which is similar, either in material, quality, texture, or the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject to the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned; * * *. At the trial, plaintiff called three witnesses, offered one exhibit," }, { "docid": "13000507", "title": "", "text": "claims to the complaint. The decision of the Treasury Department, T. D. 53454, supra, specifically states that the plaintiff herein filed a complaint, claiming, among other things, “that K inch engravers’ steel was properly classifiable * * * as steel bars under paragraph 304, Tariff Act of 1930, and chargeable with duties at the appropriate rates as such, together with additional duties under paragraph 315 as such bars are cold rolled or polished.” The amendment, therefore, does not, in our judgment, circumvent the statute, but merely corrects a patent clerical error. As to the claim in said protest 241476-K that the subject merchandise should alternatively be classified as steel plates, engraved or otherwise prepared for printing, in paragraph 341 of the Tariff Act of 1930 (19 U. S. C. § 1001, par 341), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739, for which duty at the rate of 12% per centum ad valorem is provided, we hold that it is invalid as not being within the scope of the complaint. We now reach a consideration of the case on the merits. Plaintiff contends, first that the imported articles are fabricated from bars by manufacturing operations which produce an article dedicated to the specific, exclusive use of engravers and, hence, should be classified as articles, wholly or in chief value of metal, and subjected to duty at the rate of 22% per centum ad valorem in paragraph 397 of said act (19 U. S. C. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802. If, however, this claim should be held to be untenable, it is contended, alternatively, that the imported articles are known, both commonly and commercially, as bars and not as plates, and subject to classification in paragraph 304 of said act (19 U. S. C. § 1001, par. 304) as bars, cold rolled or polished, and subject to the additional duty provided in paragraph 315 of said act (19 U. S. C. §" }, { "docid": "3720288", "title": "", "text": "Lawkence, Judge: Certain imported merchandise described in the record as \"Wardrobe Locks” was classified by the collector of customs as cabinet locks pursuant to the terms of paragraph 384 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 384), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802, and duty was assessed thereon at the rate of 10 per centum ad valorem plus 75 cents per dozen. The protest of plaintiff, as amended, claims alternatively that the merchandise, if classifiable in said paragraph 384, is properly dutiable at 10 per centum ad valorem plus 35 cents a dozen, or 10 per centum ad valorem plus 50 cents a dozen, or should be classified in paragraph 397 of said act (19 U. S. C. § 1001, par. 397), as modified by said trade agreement, and dutiable at 22% per centum ad valorem. The provisions of the statutes above referred to are here set forth. Paragraph 384, as modified, supra: Cabinet locks, not of pin tumbler or cylinder construction: Not over one and one-half inches in width_35(5 per doz. and 10% ad val. Over one and one-half and not over two and one-half inches in width_500 per doz. and 10% ad val. Over two and one-half inches in width_ 750 per doz. and 10% ad val. Paragraph 397, as modified, supra: Articles or wares not specially provided for, whether partly or wholly manufactured: * * * * * * * Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or. other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer: * * * * * * * Other (except slide fasteners and parts thereof)_22)4% ad val. As stated in the brief of plaintiff— The chief claim herein is that the merchandise is not in fact a cabinet lock but is in fact a wardrobe lock, thus taking it out of the provisions of Paragraph 384 and bringing it into the provisions of" }, { "docid": "10945866", "title": "", "text": "Lawrence, Judge: In this cause of action, the question for our determination is whether certain aluminum products should be classified for tariff purposes as aluminum bars or rods. The imported items in controversy, represented b.y exhibits 1 through 9, with one exception, are cylindrical shapes, hollow in form, having diameters ranging from three-eighths of 1 inch to about 2 inches and in lengths from approximately 34 inches to 21 feet. The exception, exhibit 7, is a hollow rectangular shape approximately three-fourths of 1 inch square and 23 inches long. In its imported condition, however, it was 12 feet long. The collector of customs classified the merchandise as articles, not specially provided for, composed in chief value of aluminum, and duty was imposed thereon at the rate of 22% per centum ad valorem in paragraph 397 of the Tariff Act of 1930 (19 U.S.O. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802. Four protests, which are enumerated in the attached schedule and made a part of this decision, were consolidated for trial. Plaintiff, by its protests, invokes the provisions of paragraph 374 of said act (19 U.S.C. § 1001, par. 374), as modified by said general agreement, supra, which provides for aluminum and alloys in which aluminum is the component material of chief value “in coils, plates, sheets, bars, rods, circles, disks, blanks, strips, rectangles, and squares,” which are made dutiable at 3 cents per pound. It may be noted here that the items in controversy are generally referred to on the invoices as aluminum tubes or as aluminum alloy tubing and, moreover, the articles are described on the entries as “aluminum tubing.” Plaintiff introduced the testimony of two witnesses and defendant called one. Plaintiff’s first witness, Maurice Norman Katz, had been vice president of the plaintiff company since 1946 and described his duties as “general manager of over-all operations of the purchasing and storing and sale of aluminum, copper and brass mill products.” He received a bachelor of science degree in metallurgy from the Massachusetts Institute of Technology" }, { "docid": "5780059", "title": "", "text": "made in the United States which are articles of the manufacture of the United States and had been returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means, and without drawback having been paid or allowed, and that duty was assessed on the silk woven fabrics under the provisions of paragraph 1205, Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802 and T. D. 52476, at 25% ad valorem, and that duty was assessed on the woolen woven fabrics under the provisions of paragraph 1109, Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802 at 25% ad valorem plus 37)40 per pound. IT IS FURTHER STIPULATED AND AGREED that the duties were imposed in the liquidation of the said entry by reason of the failure of the importer to comply with section 10.1 of the Customs Regulations of 1943, then in effect. That if said regulations had been complied with, the merchandise would have been granted free entry under the provisions of paragraph 1615 of the Tariff Act of 1930 as amended. IT IS FURTHER STIPULATED AND AGREED that the importer has now complied with the Customs Regulations of 1943, which were in effect at the time of importation, specifically sections 10.1 (a) (1), (2) by the filing of consular form 129 and customs form 3311, and has complied with section 1Ó.1 (a) (3) of the Regulations by virtue of the collector’s waiver of the filing of customs form 4467 in accordance with the provisions of the said section. IT IS FURTHER STIPULATED AND AGREED that all papers contained in the official entry jackets be received in evidence herein. IT IS FURTHER STIPULATED AND AGREED that the protest shall be submitted on this stipulation. It appears from the official papers that this merchandise was entered as dutiable at the rates and under the paragraphs above cited. The entry was liquidated and duty assessed on April 1, 1954. Thereafter, a protest was" }, { "docid": "3706860", "title": "", "text": "cents or more per pound, and duty was imposed thereon at the rate of 15 per centum ad valorem in accordance with paragraph 329 of the Tariff Act of 1930 (19 U. S. 0. § 1001, par. 329), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802. Plaintiff claims that the merchandise (except the connecting finks which the record discloses weigh 52% pounds, net, and are valued at $105.62 but are not here in issue) consists of chain and that it should be classified pursuant to the provision in said paragraph, as modified, supra, which reads— Chain and chains of all kinds, made of iron or steel: * Hí # * * * * Less than five-sixteenths of one inch in diameter_2(4 per lb. The provision adopted by the collector of customs, so far as pertinent here, reads: Chains of iron or steel, used for the transmission of power, of not more than two-inch pitch and containing more than three parts per pitch, and parts thereof, finished or unfinished: # * * s{i jje % * Valued at 40 cents or more per pound_ 15% ad val. From the foregoing facts, the question presented is one of law— whether the merchandise in its condition as imported consists of chain, a material, as claimed by the importer, or completed articles of chain to be used in the transmission of power, as classified by the collector. Congress has drawn a distinction in paragraph 329 between “chain” and “chains,” the former referring to material and the latter to articles made of such material. C. J. Tower & Sons v. United States, 48 Treas. Dec. 220, T. D. 41118. Although that case arose while the Tariff Act of 1922 was in effect, the language of paragraph 329, supra, is in substantially the same language so that it may properly be said that Congress has given approval of that construction. Plaintiff places considerable reliance upon the doctrine of the following two cases. United States v. The Harding Co., 21 C. C. P. A. (Customs) 307, T. D." }, { "docid": "12203503", "title": "", "text": "Foed, Judge: The merchandise involved herein consists of smocked dress fronts imported from the Barbados, British West Indies. The dress fronts covered by protest 64/17889 were classified by the collector as ornamented wearing apparel, unfinished, in chief value of cotton, under paragraph 1529(a) of the Tariff Act of 1930, as modified by T.D. 54108. The smocked dress fronts covered by protest 65/4126 were classified, according to the statements contained in the respective briefs of the parties, as “wearing apparel in part of smocking,” in chief value of cotton, under item 382.03 of the Tariff Schedules of the United States. In each instance, the rate of duty assessed on the merchandise was 42y2 per centum ad valorem. Initially, it should be noted that, while the merchandise covered by protest 65/4126 was classified under TSUS item 382.08 apparently as “Wearing Apparel in Part of Smocking, C/V Cotton,” in Jiaec verba as they appear in the “Report of Collector on Protest,” no such tariff description is found in TSUS. Accordingly, in TSUS terminology, the merchandise is deemed to have been classified under TSUS item 382.03 as “other women’s, girls’, or infants’ wearing apparel, ornamented.” Plaintiff contends that the merchandise imported prior to the effective date of TSUS is properly dutiable at 20 per centum ad valorem as articles of wearing apparel, manufactured wholly or in part, in chief value of cotton, under paragraph 919 of the Tariff Act of 1930, as modified by T.D. 51802. The merchandise imported after the effective date of TSUS is claimed to be dutiable at 20 per centum ad valorem as women’s, girls’, or infants’ wearing apparel, not ornamented, in chief value of cotton, not specially provided for, under TSUS item 382.33. Concerning the claim under TSUS, the trial court, without objection from defendant’s counsel, granted plaintiff’s motion to amend protest 65/4126 by substituting item number 382.33 for item number 382.09. The trial court also granted plaintiff’s motion to consolidate the two protests for purposes of trial and for filing briefs. Counsel for the respective parties stipulated that the imported merchandise consists of unfinished wearing apparel wholly or" }, { "docid": "8586426", "title": "", "text": "Bao, Chief Judge: The protest before the court is limited to the last item of merchandise appearing on the commercial invoice accompanying the entry, described as “10,000 pieces. 1\" x 8/ie\" Connecting Links, Bulk pack in plain white box.” At the time of its importation through the port of Philadelphia, the collector of customs classified said merchandise as parts of bicycles in paragraph 371 of the Tariff Act of 1930, and assessed duty thereon at the rate of 30 per centum ad valorem. Whereas plaintiff in its brief contends, alternatively, that the imported articles should properly have been classified within the chain provisions of paragraph 329 of said act, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. 53865, supplemented by Presidential notification, 90 Treas. Dec. 280, T.D. 53877, and duty imposed thereon at the rate of I214 per centum ad valorem, or as articles or wares, not specially provided for, composed wholly or in chief value of base metal, in paragraph 397 of said tariff act, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and subjected to duty at the rate of 19 per centum ad valorem, reliance has been placed on the former of said claims. We set forth here the provisions of paragraph 329 of the tariff act, as modified by the Japanese protocol, supra— Chains of iron or steel, used for the transmission of power, of not more than 2-inch pitch and containing more than three parts per pitch, and parts thereof, finished or unfinished, valued per pound— Under 40 cents_ * * * 40 cents or more_12%% ad val. All other chains used for the transmission of power, and parts thereof_ 12%% ad val. When this case was called for hearing, plaintiff presented the testimony of three witnesses, and there were received in evidence two exhibits representative of the connecting links in issue. From the testimony of record presented by witnesses with 20, 22, and 35 years’ experience in the" }, { "docid": "22370895", "title": "", "text": "Rao, Judge: Certain wallpaper sample books, imported from France, were classified by the collector of customs at the port of entry, as manufactures of paper, not specially provided for, and, accordingly, were assessed with duty at the rate of 17% per centum ad valorem, pursuant to the provisions of paragraph 1413 of the Tariff Act of 1930, as modified by the Annecy Protocol to the General Agreement on Tariffs and Trade, 84 Treas. Dec. 403, T.D. 52373, supplemented by Presidential proclamation, 85 Treas. Dec. 116, T.D. 52462. Plaintiff herein contends that said merchandise consists of samples entitled to free entry, by virtue of paragraph 1821 of the Tariff Act of 1930, as added by Public Law 85-211 (71 Stat. 486), approved August 28, 1957. An alternative claim for classification of the imported articles within the provisions of paragraph 1409 of said act, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, for hanging paper, therein made dutiable at the rate of 1 cent per pound and 10 per centum ad valorem, has not been further pressed and is, therefore, deemed to have been abandoned. The tariff provisions remaining in competition read, insofar as here pertinent, as follows: Paragraph 1413, as modified, supra: Manufactures of paper, or of which paper is the component material of chief value not specially provided for (except ribbon fly catchers or fly ribbons)_17%% ad val. Paragraph 1821, supra: (a) Except as provided in subparagraphs (b), (c), and (d), any sample to be used in the United States only for soliciting orders for products of foreign countries. (b) Subparagraph (a) shall apply to a sample only if its value does not exceed $1, except that this limitation shall not apply to (1) any sample which is marked, torn, perforated, or otherwise treated, in such a manner that such sample is unsuitable “for sale or for use otherwise than as a sample, or (2) any sample which is covered by subparagraph (c) or (d). The record shows that the involved wallpaper sample books were imported for the account of A. L." }, { "docid": "22550854", "title": "", "text": "Ford, Judge: This suit challenges the classification of the collector of certain imported merchandise as “Other Nets” and the consequent levy of duty thereon at the rate of 45 per centum ad valorem under paragraph 1529 (a) of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802. Plaintiff claims said merchandise to be properly dutiable at the rate of 25 per centum ad valorem under said paragraph 1529 (a), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739, as lace, made on a bobbinet-Jacquard machine. The involved paragraphs, as modified, are as follows: [5] All fabrics and articles, plain or figured, made on a lace or net machine: Nets and nettings, not embroidered: Made on a bobbinet machine and wholly or in chief value of cotton: * * * * * * jfí Other-45% ad val. [3] Laces, etc., if made on a bobbinet-Jacquard machine, whether or not embroidered, and however provided for in this subparagraph (a), but not including veils or veilings, 25% ad val. At the trial of this case, a representative sample of the subject merchandise was admitted in evidence and marked plaintiff's exhibit 1; a commission, containing the testimony of plaintiff's witness Bernard Godber, was admitted in evidence as plaintiff’s exhibit 2; and three samples of merchandise, illustrative of lace, were admitted in evidence as plaintiff’s illustrative exhibits 3, 4, and 5. In addition, plaintiff offered the testimony of five witnesses and the defendant offered the testimony of two witnesses. Counsel for the parties agreed that plaintiff’s exhibit 1 represents in all material respects item No. 35087, covered by the protest at bar, and, further, that this sample is composed wholly of cotton. When witness Bernard Godber was asked whether or not the machine used to make the point d’esprit net, item No. 35087, was a bobbinet machine with a Jacquard attachment, he answered: “Definitely is a bobbinet machine with a Jacquard attachment.” This testimony is nowhere denied or contradicted. It" }, { "docid": "8875558", "title": "", "text": "Nichols, Judge: The merchandise involved in these cases, consolidated at the trial, consists of “centering microscopes,” imported from France and entered at the port of Philadelphia in November and December of 1957. They were assessed with duty at 45 per centum ad valorem under paragraph. 228 (b) of the Tariff Act of 1930, as modified by the Protocol of Terms of Accession by Japan to the General Agreement on Tariffs and Trade, T.D. 53865 and T.D. 53877, as microscopes, not specially provided for, valued over $50 each. It is claimed by amendment to the protests that they are dutiable at 15 per centum ad valorem under paragraph 372 of said tariff act, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, as machine tools or parts thereof. The original claim for classification at 13% per centum ad valorem under paragraph 353 of said tariff act, as modified, is not mentioned in plaintiff’s brief and is deemed abandoned. The merchandise covered by these entries consisted of two .classes of merchandise: Dividing heads for boring machines and centering microscopes. The dividing heads were entered and assessed with duty under paragraph 372 of the Tariff Act of 1930, as modified, and the microscopes under paragraph 228 (b), as modified. The protests refer to “Dividing Heads for Boring Machines” and “Microscopes,” the word “Microscopes” being a typed insert, and state in each instance that the entry “was liquidated under * * * paragraph 372 at the rate of 15%, with a balance due customs” in a specified amount. In the case of protest No. 62/7926 this was $182.40. Beference to the other papers shows that this figure was a net after an upward adjustment for the dividing heads and a reduction for the microscopes. A similar net figure is used in the other protest resulting from increases as to both items. Finally, it is claimed the “merchandise should have been liquidated as machines, nspf, having an electrical element as an essential feature, under paragraph 353 at the rate of 13%%.” Clearly this was a garbled protest. The collector might have inferred" }, { "docid": "22683686", "title": "", "text": "meaning of paragraph 907, Tariff Act of 1930, unless it is of a kind generally used in the manufacture of articles of the class specified in the preceding sentence. The present action is the first occasion for judicial consideration of the scope and effect of this new language. It arises by way of a protest filed against the collector’s assessment of duty at the rate of 22y2 per centum ad valorem, on an importation of cotton velveteens, which he classified as twill back velveteens, valued at over $1.11% per square yard, pursuant to the provisions of paragraph 909 of the Tariff Act of 1930, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. 53865, supplemented by Presidential notification, 90 Treas. Dec. 280, T.D. 53877. It is the contention of the plaintiff that its merchandise falls within the intendment of the revised provision for waterproof cloth, and that, therefore, it is dutiable at only 11 per centum ad valorem, as provided in said paragraph 907, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, as supplemented by Presidential proclamation, 92 Treas. Dec. 175, T.D. 54399. The parties have in effect agreed by a stipulation entered into during the course of trial that the subject velveteen was properly classifiable as waterproof cloth, if imported prior to the effective date of Public Law 86-795. The full text of their stipulation reads as follows: 1. The merchandise here involved, corretly described in the invoice as “100% Cotton — Made in Italy First Quality Mammola Twill Bach Velveteen 35/36\" Water Repellent,” consists of cloth wholly of cotton, and not in any part of india rubber. 2. This cloth passes the “cup test” for waterproofing described in D. H. Grant & Co., Inc. vs. United States, C.D. 2065, C.A.D. 723. 3. It has been the established and uniform practice of the Collectors of Customs to classify such cloth as follows: a. All entries made prior to January 10, 1955 (the effective date of T.D. 53630) were classified under Paragraph" }, { "docid": "14349617", "title": "", "text": "Rao, Judge: Certain printed folders are the subject of the instant five protests which have been consolidated for purposes of trial. For reasons which have not been explained, the items in issue were not uniformly classified by the collector of customs at the port of entry. Those folders, invoiced as “Futura” in entry 940889 of protest 60/29580 and represented by the article introduced into evidence as plaintiff’s exhibit 1; as “Venus” in entry 798829 of protests 59/17114 and 59/17115, in evidence as plaintiff’s exhibit 3; and as “Fortuna” in entry 796963 of protest 60/14156, in evidence as plaintiff’s exhibit 5, were classified within the provisions of paragraph 1413 of the Tariff Act of 1930, as modified by the Annecy Protocol to the General Agreement on Tariffs and Trade, 84 Treas. Dec. 403, T.D. 52373, supplemented by Presidential proclamation, 85 Treas. Dec. 116, T.D. 52462, as manufacturers of paper, not specially provided for, and, accordingly, were assessed with duty at the rate of 17% per centum ad valorem. The items invoiced as “Lucian” and “Bernhard Cursive” in entry 798829 of protests 59/17114 and 59/17115, introduced into evidence as plaintiff’s exhibits 2 and 4, respectively, were classified as articles, wholly or in chief value of surface-coated paper, within the provisions of paragraph 1405 of said act, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. 53865, supplemented by Presidential notification, 90 Treas. Dec. 280, T.D. 53877, at the rate of 2y2 cents per pound and 10 per centum ad valorem. Those folders invoiced as “Folio” in entry 760486 of protest 61/10732, introduced into evidence as plaintiff’s exhibit 6, were assessed with duty at, the rate of 10 per centum ad valorem pursuant to the provision in paragraph 1410 of said act, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, as pamphlets, not specially provided for, of other than bona fide foreign authorship. The sole claim in the protests, as originally filed, was that all of these folders are dutiable at the rate of 5" }, { "docid": "10490043", "title": "", "text": "Ford, Judge: The protest herein challenges the tariff classification of certain imported merchandise described on the invoice as a “Cold Straightener Type Kit 100 ST.” It is a machine for straightening-crooked or bent round pipes or tubes of a diameter up to 2% inches. The machine was classified under the provisions of paragraph 372 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, and assessed thereunder with duty at the rate of 15 per centum ad valorem. The plaintiff contends the merchandise is classifiable as a machine, not specially provided for, under paragraph 372 of the said tariff act, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, with duty at 11% per centum ad valorem; or, in the alternative, as an article with an essential electrical feature under paragraph 353 of the said tariff act, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, with duty at 13% per centum ad valorem. This claim, not having been pressed, is deemed abandoned. Plaintiff had a second alternative claim for classification of the article as a welding machine under paragraph 353 of the said tariff act, but abandoned this claim at the trial. The statutory provisions of the tariff act pertinent to the issue herein read as follows: Paragraph 372, Tariff Act of 1930: * * * machine tools, * * * Provided further, That machine tools as used in this paragraph shall be held to mean any machine operating other than by hand power which employs a tool for work on metal. Paragraph 372, as modified by T.D. 51802: Machine tools (except jig-boring machine tools)_15% ad val. Paragraph 372, as modified by T.D. 54108: Machines, finished or unfinished, not specially provided for: ******* Other (* * *)_11%% ad val. Two exhibits were introduced into the record. Plaintiff’s exhibit 1, referred to in the record and defendant’s brief as a “schematic drawing,” was" }, { "docid": "17806885", "title": "", "text": "LawebNCe, Judge: This case relates to importations of so-called steel pins or wire pins, having a diameter of 0.294 to 0.296 inches and 1}{ or % inches long. The collector of customs classified the merchandise as articles, wholly or partly manufactured, composed in chief value of base metal, in paragraph 397 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802, and duty was imposed thereon at the rate of 22% per centum ad valorem. The five protests enumerated in the attached schedule, which is incorporated herein, were consolidated for hearing and determination. At the trial, plaintiff relied upon the following three claims which are contained in the protests directly or by amendment: 1. We claim that the merchandise should be classified as rivets brightened, with duty at 15% ad valorem, under paragraph 332, as modified, T. D. 51802. 2. We also claim that the merchandise should be classified under paragraph 331, as modified, T. D. 51802, as nails or spikes made of iron or steel wire, not less than 1 inch in length, nor smaller than 6%ooo of 1 inch in diameter, for which the duty was %o cents per pound. That claim is made in connection with the articles that are 1 % inches long. 3. On the articles that are % inches long, we made the claim, under paragraph 331, with duty at 1J4 cents per pound, under the provision for other iron or steel nails, not specially provided for. It was pointed out by plaintiff that the last two claims are predicated upon the length of the particular articles. The text of the statutes involved herein, so far as pertinent, reads as follows: Paragraph 397, as modified, sufra: Articles or wares not specially provided for, whether partly or wholly manufactured: # # * # * * Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with" }, { "docid": "23244637", "title": "", "text": "the final classification officer? A. The Collector. Q. The Collector himself? A. Yes. ifc ife ‡ * * * The following excerpt from the Government’s brief, summarizing-the testimony of Claude E. Blancq, Jr., is believed to accurately portray the events which occurred after the appraiser’s report of December 2, 1952, was received by the collector: The importer also called as its witness Claude E. Blancq, Jr., the Deputy-Collector in charge of the Liquidating Division at New Orleans. Mr. Blancq \"testified that because the appraisement did not become final until 60 days after the report was filed with the Collector, the entry was not placed in line for tentative liquidation until January 31, 1953 (R. 24). He then testified that a liquidation was not final until it had been verified by the Comptroller of Customs (R. 25). He then stated that the entry was liquidated and liquidation posted on the bulletin in the window of the Liquidating Division on June 23, 1953. * * * * * * At the time of liquidation, the merchandise was classified at the rate of 45 per centum ad valorem under paragraph 1301 of the Tariff Act of 1930 as filaments of synthetic textiles, single over 150 deniers, •and a claim for additional duties was made on the importer. On July 25, 1953, the importer filed a protest against the liquidation of June 23, 1953. This protest did not in any way attack the •classification of the merchandise made at the time of liquidation, but was presented for the purpose of protesting the claim for additional duties on “the sole, single issue of date of liquidation, and not on any other ground.\" This broadly provided the issue on which the Customs Court rendered its decision. The main question before this court is whether the acceptance of the estimated duties by the Collector of Customs on the filing of a consumption entry is a decision of the collector within section 514 of the Tariff Act of 1930, infra, as to the rate and amount of duty chargeable which becomes final and conclusive at the expiration of" }, { "docid": "9594487", "title": "", "text": "Rao, Chief Judge: The court is called upon to determine the classification for customs duty purposes of numerous importations of Klystron and photomultiplier tubes imported from England covered by the above-enumerated protest and 62 others listed in schedule A, attached to and forming part of this decision. The Klystron and photomultiplier tubes were classified by the collector of customs as laboratory apparatus or parts thereof within the provisions of paragraph 360 of the Tariff Act of 1930, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and duty was imposed thereon at the rate of 27 per centum or 25y2 per centum ad valorem, according to the date of entry for consumption. The contention of plaintiffs is that both types of tubes are properly subject to classification as articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy within the purview of paragraph 353 of said act, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, for which duty at the rate of 15 per centum ad valorem is provided. \"Wlien the case was called for hearing, plaintiffs offered in their behalf the rather extensive testimony of four witnesses. A continuance of the trial was thereupon requested and granted for the presentation of additional testimony. On the appointed day, no new oral testimony was presented, but the parties entered into a stipulation with regard to the Klystron tubes covered by the instant protests, which stipulation was received in evidence as plaintiffs’ exhibit 6, and is set forth in full below: IT IS HEREBY STIPULATED AND AGREED by and between counsel for the parties hereto that the merchandise represented by the item numbers appearing on Plaintiffs’ Exhibit 3 and on each of the invoices included in the entries, the subject of the protests enumerated in Schedule “A” attached hereto and made a part hereof, consist of klystrons which were classified either as laboratory apparatus or parts of laboratory apparatus under the provision of Paragraph 360, as modified by T.D." }, { "docid": "4723867", "title": "", "text": "Rao, Judge: In this action, we are asked to determine the proper dutiable status of certain parts of pneumatic chip conveyors, consisting of five blower motor assemblies and one feeder with motor. This merchandise was classified by the collector of customs at the port of Seattle, Wash., as “Parts of machines (blowers) having an electric motor as an essential feature” and assessed with duty at the rate of 17% per centum ad valorem within the provisions of paragraph 353 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802. It is claimed in the protest that said merchandise, described therein as “Blower machines and parts thereof, including their blowers, motors, or engines,” is dutiable at the rate of 13% per centum ad valorem, either as articles having as an essential feature an electrical element or device, or as machines, not specially provided for, within the provisions of paragraph 353 of the Tariff Act of 1930, or of paragraph 372 of said act, respectively, both as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739, or at the rate of 10 per centum ad valorem, as machines for making paper pulp or paper, pursuant to the provi sions of said paragraph 372, as modified by said Torquay protocol. While none of the alternative claims has been abandoned, plaintiff relies primarily ftp on the contention that all of the subject articles are provided for in said paragraph 372, as modified, supra, as machines, not specially provided for. Certain observations concerning the protest are here deemed pertinent. It would appear that, in describing the merchandise which formed the subject of the protest, plaintiff made no specific reference to the item of the feeder, although evidently regarding the collector’s classification of that item as erroneous. Ordinarily, we would be inclined to the view that an article not specified in the protest is not before the court for consideration. However, since both the blower assemblies and the feeder, with its accompanying" } ]

[ { "docid": "9741412", "title": "", "text": "consists of general damage which followed the DLJ debacle that ultimately led ATI into bankruptcy, where it has creditors’ claims of about $300 million.” (P. Br.9.) - Insofar as ATI seeks to recover money owed to creditors, it lacks standing. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1093 (2d Cir.1995). ATI may, however, bring claims to recover for injuries it allegedly incurred — for example, fees that it paid to DLJ or interest on allegedly usurious loans extorted from ATI after DLJ changed the terms of the bond offering at the eleventh hour. Against the backdrop of extensive allegations of internal corruption and criminal conduct that led to ATI’s suit against, among others, its former shareholders Gabayzadeh and Elghanayan, a federal grand jury indictment of, among others, SATI and Gabayzadeh, and an SEC complaint against, among others, ATI and Gabayzadeh (Keats Decl., Exs. 13-15), see Am. Tissue, 275 F.Supp.2d at 402-03, the Court must view with considerable skepticism ATI’s allegations that DLJ’s deficient financial advice and other breaches of contract or fiduciary duty caused ATI to go bankrupt. And it strains credulity that the damages alleged by ATI in connection with the malpractice claims — the $800 million owed by ATI to its creditors — happen to correspond precisely to the damages that ATI itself allegedly suffered as a consequence of DLJ’s bad advice and self-dealing. (Tr. 20-21.) Cf. Hirsch v. Arthur Andersen & Co., 178 B.R. 40, 43 (D.Conn.1994) (“Recognizing that he cannot assert claims against the defendants on behalf of the creditors, the trustee alleges damage to the debtors, to the extent of the unpaid obligations of the debtors to the creditors.”), affd, Hirsch, 72 F.3d 1085. Nevertheless, ATI’s failure to plead damages properly (or plausibly) does not necessarily condemn its malpractice claims wholesale. However unlikely that DLJ’s alleged breaches of fiduciary duty, fraud, and other malfeasance, as opposed to the alleged corrupt and even criminal conduct internal to ATI, caused ATI’s bankruptcy, proximate causation generally remains an issue of fact for the jury. See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 840-41," } ]

[ { "docid": "9741413", "title": "", "text": "duty caused ATI to go bankrupt. And it strains credulity that the damages alleged by ATI in connection with the malpractice claims — the $800 million owed by ATI to its creditors — happen to correspond precisely to the damages that ATI itself allegedly suffered as a consequence of DLJ’s bad advice and self-dealing. (Tr. 20-21.) Cf. Hirsch v. Arthur Andersen & Co., 178 B.R. 40, 43 (D.Conn.1994) (“Recognizing that he cannot assert claims against the defendants on behalf of the creditors, the trustee alleges damage to the debtors, to the extent of the unpaid obligations of the debtors to the creditors.”), affd, Hirsch, 72 F.3d 1085. Nevertheless, ATI’s failure to plead damages properly (or plausibly) does not necessarily condemn its malpractice claims wholesale. However unlikely that DLJ’s alleged breaches of fiduciary duty, fraud, and other malfeasance, as opposed to the alleged corrupt and even criminal conduct internal to ATI, caused ATI’s bankruptcy, proximate causation generally remains an issue of fact for the jury. See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 840-41, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996) (“The issues of proximate causation and superseding cause involve application of law to fact, which is left to the factfinder, subject to limited review.”). While it seems highly implausible that the damages ATI allegedly sustained because of DLJ’s alleged malpractice correspond to the $300 million ATI owes to its creditors, the Court therefore declines to hold, solely on the basis of ATI’s (at best) inartful pleading of its damages, that ATI lacks Article III standing to assert any of the malpractice claims. ATI can assert these claims insofar as the injuries it alleges (1) can be traced to DLJ and (2) injured ATI, as distinct from its creditors or investors. ATI’s malpractice allegations boil down to a claim that had DLJ done what it told ATI it could or would do, ATI would not have been effectively forced to enter into certain unfavorable financial arrangements that precipitated its demise. To the extent that ATI seeks to recover for injuries arising from those unfavorable financial arrangements, as well as" }, { "docid": "20242021", "title": "", "text": "not argue that the claims do not belong to the creditors. (See Memorandum of Points and Authorities in Support of Citibank, N.A.’s Motion to Dismiss, Hunter v. Citibank, N.A., No. 09-cv-02079-JW (N.D.Cal. Oct. 2, 2009) (ECF # 132).) Thus, it appears that the merits of the aiding and abetting claim against Citibank will be tested in court. CONCLUSION For the forgoing reasons Citibank’s motion to dismiss is granted with leave to amend. The Trustee demonstrated that he has adequate constitutional standing to bring the aiding and abetting claim, but he has not pleaded sufficient facts to demonstrate prudential standing under the Wagoner rule. The Trustee may file an amended complaint within 30 days from the entry of this Opinion and Order. Citibank shall respond the amended complaint within 30 days thereafter. Entry of this Opinion and Order shall not relieve the parties of their obligations under the Stipulation and Amended Scheduling Order (ECF # 34), unless and until an order closing this case is entered. IT IS SO ORDERED. . See Memorandum Decision and Order Conditionally Granting Debtors' Motion for Entry of an Order Approving Consulting and Services Agreement Between the Debtors and Edward G. Moran LLC (\"Memorandum Decision”), at 3-4 (Case No. 07-11448, ECF Doc. # 400). . Citibank moves to dismiss the Complaint for lack of standing under Fed.R.Civ.P. 12(b)(6). (See Notice of Motion to Dismiss or, In the Alternative, to Stay, ECF # 8.) It is unsettled in this Circuit whether it is appropriate to move to dismiss for lack of standing under Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 12(b)(1). Bartang Bank & Trust C. v. Caiola, No. 04 Civ. 2402(DAB), 2006 WL 2708453, at *4 (S.D.N.Y. Sept.18, 2006) (\"It is unclear whether dismissal for lack of standing is properly raised in a Rule 12(b)(1) or Rule 12(b)(6) motion.”). This does not change the Court's analysis. The standards governing motions to dismiss under both rules are \"substantially identical.” Andrews v. Ford, No. 08 CV 3938(LAP), 2009 WL 2870086, at *2 (S.D.N.Y. Sept.2, 2009) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003) (Sotomayor, J.)). But" }, { "docid": "9741411", "title": "", "text": "the sources of ATI’s claims, the Court agrees. The remaining allegations, while obliquely pled, suffice to confer constitutional standing on ATI, although, as discussed below, several may run afoul of the Wagoner rule. a. Damages At the threshold, the constitutional standing analysis is complicated by ATI’s failure, with respect to the malpractice claims, to allege any damages other than $300 million owed to ATI’s creditors. The complaint alleges that “ATI has been proximately damaged by [DLJ’s] conduct to the approximate amount of at least $300 million, which damage consists of general damage and damage to. good will, but more specifically, the liabilities ATI incurred to creditors of at least $300 million, and the transfer of substantial ATI assets to the non-debtor affiliates.” (CompU 58.) Furthermore, as DLJ emphasizes (D. Reply Br. 4), ATI appears effectively to concede that the malpractice claims arise solely from injury to ATI’s creditors; in its brief, ATI argues that it “has been proximately damaged by all of this conduct to the approximate amount of at least $300 million, which damage consists of general damage which followed the DLJ debacle that ultimately led ATI into bankruptcy, where it has creditors’ claims of about $300 million.” (P. Br.9.) - Insofar as ATI seeks to recover money owed to creditors, it lacks standing. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1093 (2d Cir.1995). ATI may, however, bring claims to recover for injuries it allegedly incurred — for example, fees that it paid to DLJ or interest on allegedly usurious loans extorted from ATI after DLJ changed the terms of the bond offering at the eleventh hour. Against the backdrop of extensive allegations of internal corruption and criminal conduct that led to ATI’s suit against, among others, its former shareholders Gabayzadeh and Elghanayan, a federal grand jury indictment of, among others, SATI and Gabayzadeh, and an SEC complaint against, among others, ATI and Gabayzadeh (Keats Decl., Exs. 13-15), see Am. Tissue, 275 F.Supp.2d at 402-03, the Court must view with considerable skepticism ATI’s allegations that DLJ’s deficient financial advice and other breaches of contract or fiduciary" }, { "docid": "9741467", "title": "", "text": "F.3d at 87 (“Because management’s misconduct is imputed to the corporation, and because a trustee stands in the shoes of the corporation, the Wagoner rule bars a trustee from suing to recover for a wrong that he himself essentially took part in.”). . Throughout the complaint, ATI uses words like \"required,” \"mandated,” and \"insisted” to describe DLJ’s advice and actions. ATI’s financial duress, which DLJ allegedly caused, may justify the use of such words for their rhetorical value, such as it may be. But the Court need not and does not accept the truth of factual allegations couched as legal conclusions. Mason v. Am. Tobacco Co., 346 F.3d 36, 39 (2d Cir.2003). ATI does not allege that principals of DLJ held a gun to anyone's head. An investment bank and financial ad-visor cannot \"require” or \"mandate” that its client do anything; it can only advise and recommend. ATI bears responsibility for its own actions, whatever DLJ’s purported advice. . The parameters of constitutional standing remain the exclusive province of federal law. But federal law, with certain statutorily enumerated exceptions, authorizes trustees to bring only those actions that the debtor \"could have brought prior to the bankruptcy proceedings,” Hirsch, 72 F.3d at 1093, and the debtor’s rights depend on state law. Id. While the injury-in-fact inquiry therefore remains a question of federal law, whether the rights asserted \"belong to the debtor or the individual creditors is a question of state law.” St. Paul Fire & Marine Ins. Co. v. PepsiCo., Inc., 884 F.2d 688, 700 (2d Cir. 1989); see also Wight, 219 F.3d at 86. . In the insider complaint filed by ATI against, among others, Elghanayan, ATI makes a similar claim: that after diverting corporate funds and thereby leaving ATI un-dercapitalized and unable to purchase equipment needed for its operations, Elghanayan leased the equipment to ATI \"at considerable profit” in breach of his fiduciary duty to ATI. (Keats Dec!., Ex. 13 ¶ 73.) . More broadly, DLJ argues that none of the alleged eleventh-hour changes to the bond offering confer standing on ATI because all of them were financially favorable." }, { "docid": "9741430", "title": "", "text": "connection with the acquisition of Crown’s assets, bond offering, and debt refinancing, (2) an unanticipated equity infusion, (3) the promulgation of false information in the prospectus for the offering, and (4) the equipment sale-leaseback transaction. The malpractice claims survive to the extent that ATI predicates them on DLJ’s alleged (1) fraudulent assurance about how the bond offering could and would be structured, (2) last-minute changes to the terms of the bond offering contrary to those assurances, and (3) premeditated machinations by which it injected itself into ATI’s management to enable it to self-deal. These acts, at least conceptually, injured ATI itself, as distinct from its creditors, by placing ATI in a position in which it had no practical choice but to assume various unfavorable financial arrangements. Insofar as ATI seeks to recover for such injuries — for example, interest on a loan that allegedly would not have been required had DLJ acted in accordance with its fiduciary and contractual duties, and done what it promised ATI it would do — ATI has Article III standing. Equally, because ATI’s management did not, so far as the complaint alleges, participate in DLJ’s alleged fraud and self-dealing, the Wagoner rule also does not divest ATI of standing to assert such claims. B. Exculpatory Clauses DLJ raises a second global objection to the malpractice claims. The Engagement Letter and the Highly Confident Letter incorporate' provisions by which ATI agrees to indemnify DLJ ánd its affiliates and employees for liabilities “caused by, or arising out of or in connection with advice or services rendered” by DLJ in connection with the subject matter of those letters. DLJ argues that these indemnifica tion provisions bar the malpractice claims “because the claims arise from ATI’s overarching allegations that DLJSC ‘provid[ed] negligent and wrong advice’ and failed to comply with ‘common law and professional standards for underwriters and financial advisors.’” (D. Br. 23 (quoting Compl. ¶¶ 61, 68).) DLJ cites Official Comm. of Unsecured Creditors v. Donaldson, Lufkin & Jenrette Secs. Corp., No. 00 Civ. 8688, 2002 WL 362794, at *15-*16 (S.D.N.Y. Mar. 6, 2002), which dismissed similar claims" }, { "docid": "9741392", "title": "", "text": "OPINION AND ORDER LYNCH, District Judge. American Tissue, Inc. (“ATI”), a Chapter 11 bankruptcy debtor-in-possession, brings this action against its former investment bank and financial consultant Donaldson, Lufkin & Jenrette Securities Corporation (“DLJ”) and several affiliates, alleging various causes' of action for fraud, breach of contract and fiduciary duty, and malpractice. DLJ moves to dismiss for failure to state a claim and lack of subject matter jurisdiction pursuant to Rules 12(b)(6) and 9(b), and 12(b)(1), respectively, of the Federal Rules of Civil Procedure. The Court heard oral argument on May 7, 2004. For the reasons that follow, the motion will be granted in part and denied in part. BACKGROUND The facts set forth below, drawn from the complaint, must be taken as true for purposes of DLJ’s motion to dismiss for failure to state a claim. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). ATI’s predecessor, American Tissue Holdings, Inc. (“Holdings”), manufactured, distributed, and sold consumer paper products nationwide. (Comply 19.) In November 1998, Holdings sought to acquire certain companies from an entity known as Crown Paper Co. (“Crown”) and simultaneously to refinance its debt. (Id.) ATI asked DLJ to act as its investment banker and consultant in connection with these related transactions, and on March 1, 1999, the parties executed a contract for this purpose, the “Engagement Letter.” (Id. ¶¶ 20-21.) By its terms, DLJ agreed to act as either (i) sole initial purchaser to Holdings for a period of twelve months, ... in connection with a private placement of taxable Senior Secured Notes ... or (ii) sole managing underwriter in connection with a contemplated underwritten public offering registered under the [Securities] Act [of 1933] (a “Public Offering”) of Securities, in each case to refinance outstanding indebtedness of Holdings and to acquire substantially all of the Berlin and Gorham, New Hampshire assets of Crown Paper Co. (the “Berlin-Gorham Mill”), on terms satisfactory to Holdings. (Keats Decl, Ex. 1 at 1; Compl. ¶ 21.) DLJ also agreed to use its reasonable best efforts to assist Holdings to prepare its offering memorandum, structure its acquisition" }, { "docid": "9741468", "title": "", "text": "certain statutorily enumerated exceptions, authorizes trustees to bring only those actions that the debtor \"could have brought prior to the bankruptcy proceedings,” Hirsch, 72 F.3d at 1093, and the debtor’s rights depend on state law. Id. While the injury-in-fact inquiry therefore remains a question of federal law, whether the rights asserted \"belong to the debtor or the individual creditors is a question of state law.” St. Paul Fire & Marine Ins. Co. v. PepsiCo., Inc., 884 F.2d 688, 700 (2d Cir. 1989); see also Wight, 219 F.3d at 86. . In the insider complaint filed by ATI against, among others, Elghanayan, ATI makes a similar claim: that after diverting corporate funds and thereby leaving ATI un-dercapitalized and unable to purchase equipment needed for its operations, Elghanayan leased the equipment to ATI \"at considerable profit” in breach of his fiduciary duty to ATI. (Keats Dec!., Ex. 13 ¶ 73.) . More broadly, DLJ argues that none of the alleged eleventh-hour changes to the bond offering confer standing on ATI because all of them were financially favorable. (D. Br. 3, 21; D. Reply Br. 9-10.) According to the complaint, on July 2, 1999, one week before the scheduled closing of the transaction, DLJ not only told ATI that a $25 million equity infusion would be required, but that \"the Bond due date was being moved up and [the] interest rate increased by 1%.” (Compl.$ 35.) Rather than proposing to raise $185 million at an 11.5% interest rate, DLJ proposed to raise $165 million at a 12.5% interest rate. (Id. ¶ 36.) DLJ also advanced the due date of the bonds by three years. (Id.) DLJ observes that these changes, far from injuring ATI, helped it, for \"an elementary mathematical calculation demonstrates that the difference between $185 million at 11.5% and $165 million at 12.5% resulted in a net annual savings to ATI of $650,000. Moreover, ... [DLJ] raised SI 90 million in total for ATI (not just $165 million), of which $25 million was not subject to debt service requirements.” (D. Br. 3; see also D. Reply Br. 9-10.) These observations cast" }, { "docid": "9741405", "title": "", "text": "II. The Malpractice Claims ATI’s first three claims allege, respectively, professional malpractice, breach of contract, and breach of fiduciary duty. (Compilé 60-92.) These claims, as DLJ correctly notes (D.Br.16-17), effectively allege one claim under three rubrics. Each asserts in essence that DLJ owed and breached a duty of care to ATI arising out of a contract or New York common law, or both. While these claims cannot be analyzed identically in all respects, and each, DLJ argues, suffers from discrete defects, they can be usefully categorized together for purposes of DLJ’s two global objections to them, based on standing and the contract. (D.Br.2-3.) For convenience, the Court will therefore adopt DLJ’s denomination of ATI’s first three claims as “the malpractice claims” (id. 1), a practice that comports with that of other courts in this district in related and similar cases. A. Standing DLJ raises several threshold objections to the malpractice claims, including that ATI lacks standing because it alleges no harm to itself, as distinct from its creditors, and that “when a bankrupt corporation has joined with a third party in defrauding its creditors, the trustee cannot recover against the third party for the damage to the creditors.” Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991); see also In re The Bennett Funding Group, Inc., 336 F.3d 94, 99-100 (2d Cir.2003). The first objection is constitutional: that ATI fads to allege an injury-in-fact sufficient to confer on it standing under Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The second is based on Wagoner, which, DLJ argues, bars a ^debtor-in-possession, such as ATI, from bringing suit to recover for wrongs in which it participated. Wight v. Bankamerica Corp., 219 F.3d 79, 86-87 (2d Cir.2000); Am. Tissue, Inc. v. Arthur Andersen, L.L.P., 275 F.Supp.2d 398, 404 n. 6 (S.D.N.Y.2003) (Wagoner rule applies equally to trustees and debtors-in-possession). ATI’s claims can charitably be characterized as convoluted and oblique, qualities further exacerbated by ATI’s claims, in a separate action, against its controlling shareholders for alleged abuse of the" }, { "docid": "9741459", "title": "", "text": "transfers constitute “settlement payments” within the meaning of § 546(e), see Jackson, 263 B.R. at 479-80, and (2) whether the exception for actual fraudulent conveyances applies. Accordingly, DLJ’s motion to dismiss the bankruptcy claims is denied. CONCLUSION For the reasons set forth above, DLJ’s motion to dismiss is granted as to Counts I, II, III, and IV of the complaint, except that ATI may replead Counts III (breach of fiduciary duty) and IV (fraudulent inducement) with particularity insofar as it has standing and predicates those claims on DLJ’s alleged fraud and self-dealing; and DLJ’s motion to dismiss is denied as to Counts V through X. Any amended complaint must be filed by August 27, 2004. SO ORDERED. . ATI refers to defendants collectively as “DLJ.” With the exception of Andrew Rush, an officer and employee of the principal defendant, Donaldson, Lufkin & Jenrette Securities Corporation (\"DLJSC”) (Compl.l 14), ATI names the remaining defendants, affiliates of DLJSC, only as investors in certain loans made to ATI and related entities. (Id. ¶¶ 3-13.) For convenience and consistency with the complaint, the Court will refer generally to defendants as \"DLJ.” The Court notes, however, that defendants object to this convention because it conflates a number of distinct entities. As the defendants emphasize in their brief, only DLJSC executed certain of the governing letter' agreements at issue, while the other DLJ entities were only parties to various loans and financial arrangements, and Andrew Rush appears in this action only in his capácity as a representative of certain of these defendant entities. (D.Br.6.) Where relevant to the analysis, defendants shall be distinguished accordingly. . Insofar as DLJ moves to dismiss for lack of subject matter jurisdiction, the Court may refer to extrinsic evidence relevant to the sufficiency of ATI's jurisdictional allegations. See Robinson v. Gov’t of Malaysia, 269 F.3d 133, 14.0 (2d Cir.2001). But the facts set forth below, which will be analyzed in connection with DLJ’s motion to dismiss for failure to state a claim, derive only from the complaint and documents referenced by, incorporated in, or relied upon in drafting it. See Chambers" }, { "docid": "20241981", "title": "", "text": "recover damages for injuries particular to creditors. When a party lacks a personal stake in the outcome of a matter, the party does not meet the Constitution’s case or controversy requirement. Bennett Funding, 336 F.3d at 101. To the extent customers of the Debtors were injured by Citibank’s alleged wrongdoing, the Trustee has not suffered a concrete injury that the Court may redress. Id. at 101-02 (observing that a trustee does not have constitutional standing to assert damage claims for creditors against third parties); In re Park S. Secs., LLC, 326 B.R. at 514 (finding that a bankruptcy trustee lacked constitutional standing to assert unjust enrichment claims on behalf of customers and not the estate). Moreover, it is highly unlikely that a successful suit by the Trustee would resolve injuries suffered by the customers of the 1031 Debtors. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. No matter how the Trustee’s suit is resolved, the injured customers would in all likelihood still have claims for their injuries, although the amount of their damages may not be fixed until distributions from the now-confirmed chapter 11 plan are fixed. Cf. Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988) (corporate creditor asserting RICO claim against corporate debtors principals must await bankruptcy courts disposition of trustees claim based on same wrongful conduct — through recovery of the transferred assets, abandonment or some other means — before the creditors claim will accrue); Granite Partners, 194 B.R. at 325 (“The shareholder may, however, have to await the bankruptcy courts disposition of the common claim since the shareholder cannot measure its injury until then.”). Indeed, exchange participants have filed several class actions against Citibank and other defendants, currently pending in the United States District Court for the Northern District of California. The Judicial Panel on Multi-District Litigation has ordered the class actions coordinated for pretrial purposes before Judge James Ware. See Hunter v. Citibank N.A., No. 09-cv-02079-JW (N.D.Cal.) (Ware, J.). An agreement between the Trustee in this case and counsel for the class plaintiffs (exclusively consisting of the Debtors’ exchange participants) in the MDL" }, { "docid": "9741429", "title": "", "text": "with SATI, a corporate entity wholly owned by its own shareholders, which not only deprived its investors of “a security interest,” but also “forced [ATI] to significantly overpay for leased equipment which detracted from its cash flow, and therefore, its ability to operate, which directly led to its bankruptcy.” (Id. ¶ 50.) . That is to say, ATI’s own shareholders, in the guise of SATI, imposed a usurious loan on ATI that deprived investors of a security interest and “led to its bankruptcy.” The Wagoner rule therefore divests ATI of standing to assert claims arising out of the equipment sale-leaseback transaction and related loan. See In re Bennett, 336 F.3d at 100. (“Even if there is damage to the corporation itself, the trustee cannot recover if the malfeasor was the corporation’s sole shareholder and decision maker.”) 3. Conclusion In sum, ATI lacks standing, either under Article III, the Wagoner rule, or both, to bring claims insofar as it seeks to recover for injuries arising from (1) DLJ’s advice to create a certain corporate structure in connection with the acquisition of Crown’s assets, bond offering, and debt refinancing, (2) an unanticipated equity infusion, (3) the promulgation of false information in the prospectus for the offering, and (4) the equipment sale-leaseback transaction. The malpractice claims survive to the extent that ATI predicates them on DLJ’s alleged (1) fraudulent assurance about how the bond offering could and would be structured, (2) last-minute changes to the terms of the bond offering contrary to those assurances, and (3) premeditated machinations by which it injected itself into ATI’s management to enable it to self-deal. These acts, at least conceptually, injured ATI itself, as distinct from its creditors, by placing ATI in a position in which it had no practical choice but to assume various unfavorable financial arrangements. Insofar as ATI seeks to recover for such injuries — for example, interest on a loan that allegedly would not have been required had DLJ acted in accordance with its fiduciary and contractual duties, and done what it promised ATI it would do — ATI has Article III standing." }, { "docid": "20241982", "title": "", "text": "be fixed until distributions from the now-confirmed chapter 11 plan are fixed. Cf. Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988) (corporate creditor asserting RICO claim against corporate debtors principals must await bankruptcy courts disposition of trustees claim based on same wrongful conduct — through recovery of the transferred assets, abandonment or some other means — before the creditors claim will accrue); Granite Partners, 194 B.R. at 325 (“The shareholder may, however, have to await the bankruptcy courts disposition of the common claim since the shareholder cannot measure its injury until then.”). Indeed, exchange participants have filed several class actions against Citibank and other defendants, currently pending in the United States District Court for the Northern District of California. The Judicial Panel on Multi-District Litigation has ordered the class actions coordinated for pretrial purposes before Judge James Ware. See Hunter v. Citibank N.A., No. 09-cv-02079-JW (N.D.Cal.) (Ware, J.). An agreement between the Trustee in this case and counsel for the class plaintiffs (exclusively consisting of the Debtors’ exchange participants) in the MDL proceeding has been approved by this Court and by Judge Ware, providing for cooperation between plaintiffs’ counsel and sharing of any recovery by the class plaintiffs and the Debtors’ estate. (See Order Approving Agreement Among the Trustee and the Class Representatives, Case No. 07-11448, ECF # 1597.) Both courts have approved case management orders providing for coordinated discovery in the MDL proceedings and in this case. (Compare Stipulation and Amended Scheduling Order ECF # 34 with Scheduling Order, Hunter v. Citibank IV. A, No. 09-cv-02079-JW (Oct. 16, 2009).) Despite the Trustee’s lack of constitutional standing for injuries particular to exchange participants of the 1031 Debtors, the Trustee has Article III standing for damages suffered by the Debtors as a result of Citibank’s alleged aiding and abetting of Okun’s breach of fiduciary duty. American Tissue, Inc. v. Donaldson, Lufkin & Jenrette Secs. Corp., 351 F.Supp.2d 79 (S.D.N.Y.2004), demonstrates this principle well. Judge Lynch analyzed claims brought by a debtor-in-possession, American Tissue Inc. (“ATI”), against its former investment bank and financial consultant, Donaldson, Lufkin & Jenrette Securities" }, { "docid": "9741420", "title": "", "text": "in the prospectus.” (Comply 33.) ATI “had no knowledge of these facts as they were occurring and did not learn of them until after the filing of its petition for bankruptcy.” (Id.) The inclusion of misleading financial projections in ATI’s prospectus did not injure ATI; it injured ATI’s investors, who presumably purchased the bonds based on incorrect or misleading information. See Hirsch, 72 F.3d at 1094 (holding that “claims predicated upon the distribution of misleading [private placement memoran-da]” belong to the investors, “and may be asserted only by them and to the exclusion of [the trustee]”). The remaining sources of injury enumerated above, while diverse, allege fraud in various guises. Each boils down to an allegation that DLJ, with intent to defraud, concealed information from or manipulated ATI to enable DLJ to self-deal. While several of these alleged sources of injury either run afoul of the Wagoner rule or fail to give rise to a cognizable claim for reasons that will be considered below, they allege injury to ATI as distinct from its investors or creditors, vesting ATI with Article III standing to bring them. 2. The Wagoner Rule DLJ argues that even if ATI has Article III standing to bring certain claims, the Wagoner rule bars them because ATI’s management allegedly participated in the very wrongful conduct for which ATI seeks to recover. See Wagon er, 944 F.2d at 118; Am. Tissue, 275 F.Supp.2d at 404. Wagoner expresses a rule of New York law “derive[d] from the fundamental principle of agency that the misconduct of managers within the scope of their employment will normally be imputed to the corporation.” Wight, 219 F.3d at 86. “Because management’s misconduct is imputed to the corporation, and because a trustee stands in the shoes of the corporation, the Wagoner rule bars a trustee from suing to recover for a wrong that he himself essentially took part in.” Id. at 87. This rule applies to a debtor-in-possession, Am. Tissue, 275 F.Supp.2d at 404 n. 6, that alleges malpractice claims. In re Bennett, 336 F.3d at 100. The parties vigorously dispute whether Wagoner applies here." }, { "docid": "9741416", "title": "", "text": "merely moved to and hidden in the new corporation, SATI, which was used to shelter the ownership of MATI, and which owned ATI. Literally, DLJ’s stated intent was to formulate a corporate structure with this off balance sheet transfer to hide Elghanayan’s $20 million shareholder loan from Bond Offering investors. (Id. ¶ 48.) By the complaint’s own allegations, this injury clearly accrues to ATI’s creditors, not to ATI, which cannot plausibly assert that its corporate structure concealed its debts from itself. By adopting DLJ’s alleged advice, that is, ATI did not deceive itself about its financial condition. On this theory, all claims arising from DLJ’s recommendation that ATI adopt a certain corporate structure belong to investors or creditors. ATI lacks standing to bring them because it did not suffer an injury. See Wagoner, 944 F.2d at 118 (noting that “[i]t is well settled that a bankruptcy trustee has no standing generally to sue third parties on behalf of the estate’s creditors, but may only assert claims held by the bankrupt corporation itself’ and collecting cases); see also Hirsch, 72 F.3d at 1093 (applying Connecticut law). Second, the complaint suggests that the ATI/MATI/SATI structure injured ATI because the $20 million “debt had to be repaid somehow” (Comply 49), and therefore, ATI, allegedly at DLJ’s command, created a “mechanism to repay the Elgha-nayan debt and filter money out to the ATI shareholders, Elghanayan and Gabay-zadeh, and to store up money for paying off DLJ on the DLJ Loan and Warrants.” (Id.) “To accomplish this,” the complaint continues, “DLJ acquiesced in SATI entering into capital equipment leases,” whereby SATI “sublease[d] the equipment to ATI on grossly above market payment terms.” (Id. ¶ 50.) At the threshold, it is far from clear that a corporation can state a claim against a financial adviser for “aequiesc[ingj in” unfavorable financial arrangements. But to remain focused for the nonce on standing — that is, whether ATI suffered an injury-in-fact because of DLJ’s advice to create a certain corporate structure — insofar as that advice harmed ATI, it is not because of the corporate structure recommended by DLJ;" }, { "docid": "20241984", "title": "", "text": "Corporation (“DLJ”). ATI alleged, inter alia, malpractice, breach of fiduciary duty, and breach of contract claims against DLJ in connection with corporate advice and accounting services. Id. at 87. Judge Lynch determined that ATI lacked constitutional standing on these claims to the extent that ATI sought to recover money owed to creditors. Id. at 89-91 (citing Hirsch, 72 F.3d at 1093). Still, the district court was careful to indicate that ATI had constitutional standing to bring claims for injuries that it itself allegedly suffered at the hands of DLJ. Id. at 90. Here, just as in American Tissue, the Trustee has brought a claim that seemingly includes damages that are unique to individual creditors. In American Tissue, Judge Lynch refused to permit a debtor in possession to recover for liabilities the company incurred to creditors as a result of alleged malpractice. Id. Here, the Trustee is attempting nearly the same gambit. The Trustee seeks to recover damages for being “subjected to claims by more than 300 creditors whose 1031 Exchanges were not completed.” (Comply 69.) Just as the debtor in American Tissue did not have constitutional standing to bring claims for damages to creditors, here, too, the Trustee lacks Article III standing to bring this claim to the extent it requests damages for money owed to the exchange participants of the 1031 Debtors. The Trustee, however, has constitutional standing to seek to recover damages Citibank’s alleged aiding and abetting caused the company to incur, such as fees paid to Citibank and costs associated with investigating Citibank’s conduct, see Food Mgmt., 380 B.R. at 700, so long as those damages (i) may be traced to Citibank, and (ii) injured the Debtors and not its creditors. American Tissue, 351 F.Supp.2d at 91. Likewise, the Trustee has constitutional standing to recover funds belonging to the 1031 Debtors that Citibank allegedly aided and abetted Okun in looting, to the extent this alleged injury is separate from the injury to the creditors. For example, even if the exchange participants own the claims against Citibank for loss of their Exchange Deposits, the Debtors have constitutional standing" }, { "docid": "9741406", "title": "", "text": "joined with a third party in defrauding its creditors, the trustee cannot recover against the third party for the damage to the creditors.” Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991); see also In re The Bennett Funding Group, Inc., 336 F.3d 94, 99-100 (2d Cir.2003). The first objection is constitutional: that ATI fads to allege an injury-in-fact sufficient to confer on it standing under Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The second is based on Wagoner, which, DLJ argues, bars a ^debtor-in-possession, such as ATI, from bringing suit to recover for wrongs in which it participated. Wight v. Bankamerica Corp., 219 F.3d 79, 86-87 (2d Cir.2000); Am. Tissue, Inc. v. Arthur Andersen, L.L.P., 275 F.Supp.2d 398, 404 n. 6 (S.D.N.Y.2003) (Wagoner rule applies equally to trustees and debtors-in-possession). ATI’s claims can charitably be characterized as convoluted and oblique, qualities further exacerbated by ATI’s claims, in a separate action, against its controlling shareholders for alleged abuse of the corporate form, manipulation of corporate funds, and fraud. See Am. Tissue, 275 F.Supp.2d at 400-03 (detailing ATI’s claims against Elghanayan and Gabayza-deh as set forth in an insider complaint filed on August 1, 2002). Nevertheless, here, as in Wagoner, it is analytically helpful to ask “what claims [ATI] possessed against [DLJ] before [ATI] went bankrupt.” 944 F.2d at 119 (emphasis in original). Leaving aside the proper legal characterization of ATI’s various claims, see In re Granite Partners, L.P., 194 B.R. 318, 325 (Bkrtcy.S.D.N.Y.1996) (standing inquiry should focus on “the nature of the wrongs alleged ... without regard to the plaintiffs designation”), ATI seems to allege seven principal wrongs or sources of injury: that DLJ, first, advised ATI to create a certain corporate structure — ATI, SATI, and MATI — in connection with its acquisition of Crown’s assets, bond offering, and debt refinancing; second, fraudulently assured ATI that the offering would require no equity infusion, for DLJ knew that if it insisted on this condition, ATI would retain another investment banker; third, changed the terms of" }, { "docid": "20241983", "title": "", "text": "proceeding has been approved by this Court and by Judge Ware, providing for cooperation between plaintiffs’ counsel and sharing of any recovery by the class plaintiffs and the Debtors’ estate. (See Order Approving Agreement Among the Trustee and the Class Representatives, Case No. 07-11448, ECF # 1597.) Both courts have approved case management orders providing for coordinated discovery in the MDL proceedings and in this case. (Compare Stipulation and Amended Scheduling Order ECF # 34 with Scheduling Order, Hunter v. Citibank IV. A, No. 09-cv-02079-JW (Oct. 16, 2009).) Despite the Trustee’s lack of constitutional standing for injuries particular to exchange participants of the 1031 Debtors, the Trustee has Article III standing for damages suffered by the Debtors as a result of Citibank’s alleged aiding and abetting of Okun’s breach of fiduciary duty. American Tissue, Inc. v. Donaldson, Lufkin & Jenrette Secs. Corp., 351 F.Supp.2d 79 (S.D.N.Y.2004), demonstrates this principle well. Judge Lynch analyzed claims brought by a debtor-in-possession, American Tissue Inc. (“ATI”), against its former investment bank and financial consultant, Donaldson, Lufkin & Jenrette Securities Corporation (“DLJ”). ATI alleged, inter alia, malpractice, breach of fiduciary duty, and breach of contract claims against DLJ in connection with corporate advice and accounting services. Id. at 87. Judge Lynch determined that ATI lacked constitutional standing on these claims to the extent that ATI sought to recover money owed to creditors. Id. at 89-91 (citing Hirsch, 72 F.3d at 1093). Still, the district court was careful to indicate that ATI had constitutional standing to bring claims for injuries that it itself allegedly suffered at the hands of DLJ. Id. at 90. Here, just as in American Tissue, the Trustee has brought a claim that seemingly includes damages that are unique to individual creditors. In American Tissue, Judge Lynch refused to permit a debtor in possession to recover for liabilities the company incurred to creditors as a result of alleged malpractice. Id. Here, the Trustee is attempting nearly the same gambit. The Trustee seeks to recover damages for being “subjected to claims by more than 300 creditors whose 1031 Exchanges were not completed.” (Comply 69.)" }, { "docid": "20242020", "title": "", "text": "creditors of the estate and not the Trustee. (Citibank Br. at 2; Hr’g Tr. 43-46, Sept. 10, 2009, ECF # 30 (“THE COURT: So you believe that the claim for aiding and abetting a breach of fiduciary duty resulting in the theft by Okun of funds in the 1031 accounts at Citibank is a claim that can be asserted by the exchangers? Mr. Blocker: Yes.”).) This claim is currently being litigated in the Hunter class action on behalf of a putative class of exchange participants who lost money entrusted to the 1031 Debtors while they waited for their exchange transactions to occur. During oral argument, the Trustee’s counsel expressed concern whether this claim would be vigorously litigated in California. (Hr’g Tr. 73- 77, Sept. 10, 2009, ECF # 30.) This concern appears misplaced, particularly in light of the cooperation and sharing agreement subsequently approved by this Court and Judge Ware. Moreover, Citibank does not appear to be taking alternative positions in the two cases. While Citibank has moved to dismiss the Hunter complaint, it does not argue that the claims do not belong to the creditors. (See Memorandum of Points and Authorities in Support of Citibank, N.A.’s Motion to Dismiss, Hunter v. Citibank, N.A., No. 09-cv-02079-JW (N.D.Cal. Oct. 2, 2009) (ECF # 132).) Thus, it appears that the merits of the aiding and abetting claim against Citibank will be tested in court. CONCLUSION For the forgoing reasons Citibank’s motion to dismiss is granted with leave to amend. The Trustee demonstrated that he has adequate constitutional standing to bring the aiding and abetting claim, but he has not pleaded sufficient facts to demonstrate prudential standing under the Wagoner rule. The Trustee may file an amended complaint within 30 days from the entry of this Opinion and Order. Citibank shall respond the amended complaint within 30 days thereafter. Entry of this Opinion and Order shall not relieve the parties of their obligations under the Stipulation and Amended Scheduling Order (ECF # 34), unless and until an order closing this case is entered. IT IS SO ORDERED. . See Memorandum Decision and Order" }, { "docid": "9741421", "title": "", "text": "creditors, vesting ATI with Article III standing to bring them. 2. The Wagoner Rule DLJ argues that even if ATI has Article III standing to bring certain claims, the Wagoner rule bars them because ATI’s management allegedly participated in the very wrongful conduct for which ATI seeks to recover. See Wagon er, 944 F.2d at 118; Am. Tissue, 275 F.Supp.2d at 404. Wagoner expresses a rule of New York law “derive[d] from the fundamental principle of agency that the misconduct of managers within the scope of their employment will normally be imputed to the corporation.” Wight, 219 F.3d at 86. “Because management’s misconduct is imputed to the corporation, and because a trustee stands in the shoes of the corporation, the Wagoner rule bars a trustee from suing to recover for a wrong that he himself essentially took part in.” Id. at 87. This rule applies to a debtor-in-possession, Am. Tissue, 275 F.Supp.2d at 404 n. 6, that alleges malpractice claims. In re Bennett, 336 F.3d at 100. The parties vigorously dispute whether Wagoner applies here. DLJ introduces evidence in an effort to establish that ATI’s sole shareholders, Gabayzadeh and Elghanayan, participated in the very fraudulent, indeed allegedly criminal, conduct on which ATI predicates the malpractice claims. This evidence includes ATI’s insider complaint against, among others, Gabayzadeh and Elghanayan (Keats Decl., Ex. 13), a federal indictment of, among others, Gabayzadeh and SATI, {id., Ex. 14), and an SEC complaint against, among others, Gabayzadeh and ATI. {Id., Ex. 15.) As summarized by Judge Scheindlin in an action brought by ATI against its former accountant, the essence of the Insider Complaint is that Gabayzadeh and Elghanayan “participated in and allowed various financial improprieties to take place”.... Ultimately, Gabayzadeh and Elghanayan’s “action and inaction caused the artificial perpetuation of [ATI’s] existence past the point of insolvency,” making bankruptcy a foregone conclusion.... [T]he gravamen of the Insider Complaint is that Gabayzadeh and Elghanayan “misused their control” of ATI, and that Gabayzadeh “actively participated” in accounting irregularities and the manipulation of ATI’s financials.... Am. Tissue, 275 F.Supp.2d at 402 (internal citations to insider complaint omitted). The" }, { "docid": "9741433", "title": "", "text": "of law. See Donaldson, Lufkin & Jenrette Secs. Corp., 2002 WL 362794, at *16. C. Analysis of the Individual Claims The malpractice claims, as noted above, survive to the extent that ATI predicates them on DLJ’s alleged (1) fraudulent assurances about the bond offering, (2) last-minute changes to the terms of that offering contrary to those assurances, and (3) premeditated machinations by which DLJ injected itself into ATI’s management to enable it to self-deal. 1. Professional Malpractice Court I alleges professional malpractice. ATI avers that DLJ owed it duties “under common law and professional standards for underwriters and financial advisers.” (ComplY 61.) DLJ allegedly breached that duty by (1) “lying to ATI at the outset of their relationship about the fact that equity would not have to be infused into the Transaction in order to make it succeed, when [it] knew otherwise” (id. ¶ 62); (2) “structuring the Transaction so that it was virtually impossible for ATI to meet its obligations under the Bond Offering” (id. ¶ 63); (3) “allowing a prospectus and financial statements that it knew were materially false and misleading to be publicly disseminated”; (4) “providing negligent and wrong advice” (id. ¶ 68); and (5) self-dealing through manipulation of ATI’s management. (Id. ¶ 69.) This claim will be dismissed. First, insofar as ATI predicates this claim on DLJ’s last-minute decision that equity would be required to make the bond offering attractive to investors, it lacks standing. The equity infusion, as explained above, did not harm ATI. (To the extent that ATI means to emphasize DLJ’s purported lies about this issue, it is really asserting a claim that DLJ engaged in fraud and self-dealing, allegations that will be considered separately.) Second, insofar as ATI predicates the professional malpractice claim on DLJ’s deficient structuring of the transaction, which, according to ATI, made it impossible for ATI to satisfy its debts, ATI (1) lacks standing, because ATI’s inability to satisfy those debts harms its creditors, not ATI; (2) alleges only negligence, which the exculpatory clauses of the Engagement Letter and the Highly Confident Letter bar; and (3) fails to plead" } ]

[ { "docid": "22550496", "title": "", "text": "for fatal injuries, there is no reason — in federal admiralty suits at least — that such actions should not share the doctrine of laches immemorially applied to admiralty claims. In applying that doctrine, the argument runs, the courts should give consideration to the two-year statute of limitations in the Death on the High Seas Act, just as they have always looked for analogy to appropriate state or foreign statutes of limitations. See Kenney v. Trinidad Corp., 349 F. 2d 832, 840 (C. A. 5th Cir. 1965); Gilmore & Black, supra, at 296 n. 149, 628. We need not decide this question now, because the present case was brought within a few months of the accident and no question of timeliness has been raised. The argument demonstrates, however, that the difficulties should be slight in applying accepted maritime law to actions for wrongful death. The one aspect of a claim for wrongful death that has no precise counterpart in the established law governing nonfatal injuries is the determination of the beneficiaries who are entitled to recover. General maritime law, which denied any recovery for wrongful death, found no need to specify which dependents should receive such recovery. On this question, petitioner and the United States argue that we may look for guidance to the expressions of Congress, which has spoken on this subject in the Death on the High Seas Act, the Jones Act, and the Longshoremen’s and Harbor Workers’ Compensation Act. Though very similar, each of these provisions differs slightly in the naming of dependent relatives who may recover and in the priority given to their claims. The United States contends that, of the three, the provision that should be borrowed for wrongful-death actions under general maritime law is that of the Death on the High Seas Act. It is the congressional enactment that deals specifically and exclusively with actions for wrongful death, and that simply provides a remedy — for deaths on the high seas — for breaches of the duties imposed by general maritime law. In contrast, the beneficiary provisions of the Jones Act are applicable only" } ]

[ { "docid": "7711215", "title": "", "text": "stated that, under the maritime wrongful death remedy, the widow, and other dependents, may recover damages for their “loss of support, services, and society, as well as funeral expenses.” 414 U.S. at 584, 94 S.Ct. at 814. Defining the term “society” as embracing such mutual family benefits as “love, affection, care, attention, companionship, comfort and protection,” the Court noted that a clear majority of the states now permit recovery for loss of society in wrongful death actions. “Thus,” the Court in Gaudet continued, “our decision to permit recovery for society aligns the maritime wrongful-death remedy with a majority of state wrongful-death statutes.” 414 U.S. at 587-588, 94 S.Ct. at 816. Mrs. Christofferson asserts that the Supreme Court’s desire to align the dependents’ recovery in a maritime death action with that recovery which a majority of the states would allow dependents supports her claim for loss of consortium in the case at bar because a majority of the states would permit her to maintain such an action in state court. The simple answer to Mrs. Christofferson’s argument is that her claim for loss of consortium does not arise from the wrongful death of her husband. In Gaudet the Supreme Court implicitly limited a claim for loss of society to a maritime wrongful death action when it explained that no double recovery was involved in permitting the widow in Gaudet to maintain an action for wrongful death even though her husband had been compensated for his injuries during his lifetime. The Court reasoned that: Obviously, the decedent’s recovery did not include damages for the dependents’ loss of services or of society, and funeral expenses. Indeed, these losses — unique to the decedent’s dependents — could not accrue until the decedent’s death. Id. at 414 U.S. 591-592, 94 S.Ct. at 818. Restricting loss of society to that arising after the death of an injured maritime worker indicates no intention to create an action for loss of consortium under the general maritime law where the husband was not fatally injured. THE LAW OF THE STATE OF LOUISIANA Indisputably the Court of Appeals of Louisiana" }, { "docid": "61915", "title": "", "text": "on removal, Azzopardi’s survival claim under the general maritime law was properly removed. Azzopardi’s amended district court complaint restated his DOHSA claim against ODECO as well as the Comex de fendants, thus bringing the DOHSA claim properly before the district court. Since Azzopardi seeks wrongful death damages under DOHSA and survival damages under the general maritime law, we confront a question of first impression for this circuit: whether the Supreme Court decision in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978), precludes the use of a general maritime law survival action to supplement the recovery allowed under DOHSA. We conclude that it does not. The seminal proposition in our analysis is that a-wrongful death action and a survival action are two distinct types of claims. In simplest terms, the wrongful death action is to recover damages to beneficiaries resulting from the decedent’s death, the survival action to recover damages the decedent could have recovered but for his death. See Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 575 n. 2, 94 S.Ct. 806, 810 n. 2, 39 L.Ed.2d 9, 15 n. 2 (1974); Michigan C.R. Co. v. Vreeland, 227 U.S. 59, 67-68, 33 S.Ct. 192, 194-95, 57 L.Ed. 417, 421 (1913); W. Prosser, Handbook of the Law of Torts 898-901. DOHSA is a wrongful death statute and contains no survival provision. Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 575-76, 575 n. 2, 94 S.Ct. at 810-11, 810 n. 2, 39 L.Ed.2d at 15-16, 15 n. 2. Section 762 of DOHSA states that damages allowed under the statute “shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought ...” 46 U.S.C. § 762. It has been consistently held that this provision does not allow recovery for a decedent’s pain and suffering, damages generally available by way of survival statutes. See, e.g., Dugas v. National Aircraft Corp., 438 F.2d 1386, 1389-90 (3d Cir.1971); Dennis v. Central Gulf Steamship Corp., 453 F.2d 137, 140 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct." }, { "docid": "7416704", "title": "", "text": "of beneficiaries limits a right of action for wrongful death to \"... decedent’s wife, husband, parent, child, or dependent relative .... ” Id. (emphasis added). The pertinent Washington State statute provides a wrongful death remedy for the benefit of the wife, husband, and children of the deceased, and, if none of the above are applicable, then to parents, sisters or minor brothers who were dependent upon the deceased person for support. Wash.Rev.Code § 4.20.020 (1974) (emphasis added). Thus, defendants argue that the guiding law, that of DOHSA and of Washington State, precludes plaintiffs, nondependent siblings of the decedent, from maintaining a wrongful death action pursuant to the Supreme Court’s holding in Moragne. Plaintiffs, on the other hand, look for support in more recent Supreme Court decisions. In 1974, while addressing the subsidiary issue of damages under the general maritime wrongful death remedy, the Supreme Court stated that the decision in Moragne was “... designed to extend to the dependents of maritime wrongful-death victims admiralty’s ‘special solicitude for the welfare of those men who undertake] to venture upon hazardous and unpredictable sea voyages.’ ” Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 577, 94 S.Ct. 806, 811, 39 L.Ed.2d 9 (1974), citing Moragne v. States Marine Lines, Inc., 398 U.S. at 387, 90 S.Ct. at 1780. The Court in Gaudet not only held that the wrongful death remedy was independent of any action the decedent may have had for his own personal injuries, but also extended damages to include recovery for loss of society. Gaudet relied on the more expansive state statutes which allowed recovery for loss of society as opposed to DOHSA which limits damages to pecuniary loss. Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 586-87, 94 S.Ct. at 815-16. By analogy, plaintiffs argue that the decision in Gaudet implies that the general maritime wrongful death remedy is more comprehensive and provides for greater recovery than DOHSA, and, therefore, should provide a right of action for nondependent relatives (Plaintiffs’ Memorandum in Opposition, PP. 4-5). This argument is not well-founded. In Gaudet, the Supreme Court clearly intended that the expansion" }, { "docid": "12686767", "title": "", "text": "wrongful death actions and to survival actions. Although they are often lumped together without any distinction, see Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1093 (2d Cir.1993) (where plaintiffs treated as a single action a claim for “wrongful death and survivorship benefits”), they are, in fact, quite distinct. See, e.g., Gaudet, 414 U.S. at 575 n. 2, 94 S.Ct. at 810 n. 2 (distinguishing wrongful death statutes from survival statutes). A wrongful death cause of action belongs to the decedent’s dependents (or closest kin in the case of the death of a minor). It allows the beneficiaries to recover for the harm that they personally suffered as a result of the death, and it is totally independent of any cause of action the decedent may have had for his or her own personal injuries. Damages are determined by what the beneficiaries would have “received” from the decedent and can include recovery for pecuniary losses like lost monetary support, and for non-pecuniary losses like loss of society. 2 BENEDICT ON ADMIRALTY § 81(a), at 7-2. A survival action, in contrast, belongs to the estate of the deceased (although it is usually brought by the deceased’s relatives acting in a representative capacity) and allows recovery for the injury to the deceased from the action causing death. Under a survival action, the decedent’s representative recovers for the decedent’s pain and suffering, medical expenses, lost earnings (both past and future), and funeral expenses. Id. The Jones Act (by incorporating the FELA) contains both a wrongful death provision and a survival provision. Gaudet, 414 U.S. at 575 n. 2, 576, 94 S.Ct. at 810 & n. 2. DOHSA contains a wrongful death provision, but does not contain a survival provision. Id. General maritime law contains a wrongful death action by way of Moragne, but the Supreme Court has not recognized a survival action. As was mentioned above, both Tallentire and Miles have stressed that there is as yet no clear federal rule on the extent to which state survival remedies are available under DOHSA or Moragne. See Miles, 498 U.S. at 33-34 &" }, { "docid": "10438719", "title": "", "text": "and son were living together at the time of the decedent’s death, the court held that the controlling case law used the term “dependency” to mean only financial dependency. 707 F.Supp. at 873. See also Randall, Vol. 70 Am.Mar. Cases 1583 (deciding the matter on the basis of actual financial dependency, but suggesting in dicta a presumption of dependency where the deceased was living with a relative, especially a parent or child). In Anderson, 692 F.Supp. 764, the court determined that dependency of survivors upon decedent was a bright line test for recovery, holding: [I]t is inherent in the nature of wrongful death remedies that not every survivor is entitled to recover monetary damages. A line must be drawn; without the express terms of a statute to guide the Court, it must draw a boundary that is most in line with the purpose underlying creation of the remedy. This Court is in agreement with Truehart in concluding that a limit based upon dependence is in line with the philosophy of Moragne and subsequent cases. Id. at 772. Further, recent Florida decisions construing general maritime law to deny recovery for loss of society to nondependent parents are in accord with the current Truehart movement in the law. In Lipworth, 592 So.2d 1151, a products liability action against a jet ski manufacturer, the court held “that parents may not recover under general maritime law for the death of a child absent a showing of financial dependence on the child.” Id. at 1158 (citing Perlman, 575 So.2d 216). Plaintiff’s argument relies on Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), Law v. Sea Drilling Corp., 523 F.2d 793 (5th Cir.1975), and Palmer v. Ribax, Inc., 407 F.Supp. 974 (M.D.Fla.1976). However, these cases are neither controlling nor persuasive. In Miles, the Supreme Court limited Gaudet to its narrow facts: “The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen.” 498 U.S. at —, 111 S.Ct. at 325. This language evinces the Supreme Court’s intent to limit Gaudet while expanding the Miles analysis. Plaintiff’s" }, { "docid": "543262", "title": "", "text": "appeal, the Supreme Court overturned the Canal Barge line of cases and ruled that survivors in a maritime wrongful death action may be allowed recovery for loss of support, services, society and funeral expenses. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 584, 94 S.Ct. 806, 814, 39 L.Ed.2d 9 (1974). In Sea-Land Services the Supreme Court, without specific mention, implicitly recognized that recovery for loss of consortium should be allowed in maritime wrongful death actions as well. 414 U.S. at 584-590, 94 S.Ct. at 814-817, 39 L.Ed.2d at 20. Following the Supreme Court’s directive that the maritime wrongful death remedy should reflect the “humanitarian policy of the maritime law to show ‘special solicitude’ for those who are injured within its jurisdiction”, 414 U.S. at 588, 94 S.Ct. at 816, 39 L.Ed.2d at 22, we hold that loss of consortium is a compensable harm. Despite its decision to liberalize damage awards in maritime wrongful death actions, the Supreme Court in Sea-Land Services was very much aware of the undesirable possibility of double recoveries. To prevent double recoveries, the Court suggested that each element of damages be clearly defined to allow the different awards to be separated. 414 U.S. at 591-594, 94 S.Ct. at 818-819, 39 L.Ed.2d at 25. In the case presently before us, we detect a danger of double recovery, and in remanding, offer some elaboration on that point. The District Court awarded plaintiffs damages in the following respects: 1. Mitchell Skidmore in his own capacity, $15,360.00 for loss of services. 2. Mitchell Skidmore, as Guardian for Mitchell Skidmore, III, $5,200.00 for loss of nurture and guidance. 3. Mitchell Skidmore, as Guardian for Claudia Howell, $2,640.00 for loss of nurture and guidance. According to the pronouncements of the Supreme Court in Sea-Land Services, all three of these damage awards clearly fall under the title “loss of services”. 414 U.S. at 585, 94 S.Ct. at 815, 39 L.Ed.2d at 21. Thus, the District Court must still determine the amount of recovery for the following items: 1. Loss of consortium to Mitchell Skidmore suing on his own behalf as husband of" }, { "docid": "7577951", "title": "", "text": "for the pecuniary loss sustained by the persons for whose benefit the suit is brought,” see supra note 2, indicating that the focus of our analysis should be upon the elements of damage recoverable by non- dependent parents such as the Wahlstroms. We proceed to that inquiry. 2. The Elements of Damages Recoverable by a Nondependent Parent for the Wrongful Death of a Child. The predominant issue on this appeal is the availability of damages for loss of society to the nondependent parents of a decedent who perishes under circumstances giving rise to admiralty jurisdiction. We shall accordingly address our initial attention to this aspect of the Wahlstroms’ claim, and then consider other elements of damages at least arguably encompassed by the Wahl-stroms’ demand for compensatory and punitive damages in their complaint. We begin this inquiry by reviewing the post-Moragne decisions of the Supreme Court in this area. In its first subsequent visitation of the admiralty wrongful death action established in Moragne, the Supreme Court ruled in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), that in the case of a longshoreman who died as a result of severe injuries incurred on a vessel in Louisiana navigable waters, “the decedent’s dependents may recover damages for their loss of support, services, and society, as well as funeral expenses.” Id. at 584; see also id. at 591 (“in addition to recovery for loss of support, services, and society, damages for funeral expenses may be awarded under the maritime wrongful-death remedy in circumstances where the decedent’s dependents have either paid for the funeral or are liable for its payment”). The Court next ruled in Higginbotham that the Gaudet allowance of loss-of-society damages to a dependent of a decedent who perished in territorial waters could not be extended to the high seas in view of the DOHSA limitation of damages to “pecuniary loss,” see 436 U.S. at 622-26, 98 S.Ct. at 2013-15, and reiterated this ruling in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 216, 233, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). Both Higginbotham and" }, { "docid": "19682844", "title": "", "text": "(1970), the Supreme Court held that an action lies under general maritime law for wrongful death. Then, in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 584-85, 94 S.Ct. 806, 814-815, 39 L.Ed.2d 9 (1974), the Supreme Court held that the decedent's “dependents” could obtain damages under that law for loss of society in addition to loss of support and services. The Supreme Court has not yet decided the issue of which “dependents” may sue under general maritime law but has suggested that courts might look for guidance to the Death on the High Seas Act and perhaps to state wrongful-death acts. Moragne v. States Marine Lines, Inc., supra, 397 U.S. at 408,- 90 S.Ct. at 1791. Sonat argues that since most state wrong ful-death statutes do not allow stepchildren to recover, they should not do so under general maritime law. Stepchildren, however, may sue under the Death on the High Seas Act as “dependent relatives.” 46 U.S.C. § 761; Petition of the United States, 418 F.2d 264, 270-72 (1st Cir.1969). Several courts have allowed stepchildren to recover their pecuniary losses under general maritime law. Spiller v. Thomas N. Lowe, Jr., and Associates, Inc., 466 F.2d 903, 908 (8th Cir.1972); Green v. Ross, 338 F.Supp. 365, 366 (S.D.Fla.1972), aff'd, 481 F.2d 102 (5th Cir.), cert, denied, 414 U.S. 1068, 94 S.Ct. 577, 38 L.Ed.2d 473 (1973). This court agrees with the results reached in those cases. The Death on the High Seas Act provides a more useful analogy in determining the class of beneficiaries than do state wrongful-death statutes. It seems desirable to have a uniform rule ensuring that the beneficiaries will be the same for identical torts. Stissi’s stepchildren may have damages for their pecuniary losses, that is, loss of support and services, the latter including parental guidance and nurture. See Sea-Land Services, Inc. v. Gaudet, supra, 414 U.S. at 585, 94 S.Ct. at 815. The Sea-Land Services case decided that general maritime law afforded a right to recover for loss of society. But apparently since that decision no case seeking damages for stepchildren has been reported. It is" }, { "docid": "13396462", "title": "", "text": "a plane crash occurring on the high seas. The Court held that the compensable harm in such a lawsuit is determined with reference to DOHSA, and that DOHSA's limitation of recovery to pecuniary damages barred recovery of loss-of-society damages even if such damages would be recoverable under general maritime law or state law. - U.S. at-- -, 116 S.Ct. at 632-37. Specifically, the Court stated that \"where DOHSA applies, neither state law nor general maritime law can provide a basis for recovery of loss-of-society damages.” -U.S. at-, 116 S.Ct. at 636 (internal citations omitted) (emphasis added). The plain language of DOHSA covers damages that a wrongful death causes to a decedent’s wife, husband, parent, child or dependent relative. See 46 U.S.C.App. §§ 761 and 762. The loss-of-society damages sought in Zicherman were intended to compensate Zicherman’s sister and mother for the loss of Zicherman’s \"love, affection and companionship” arising from Zicherman’s wrongful death. Zicherman,-U.S. at-, 116 S.Ct. at 631. As a result, the damages sought would have awarded Zicherman’s sister and mother— both designated DOHSA beneficiaries — relief which the plain language of DOHSA precluded them from receiving. The case at bar does not involve an allegation of error with respect to the award of loss-of-society damages to designated DOHSA beneficiaries. Rather, it involves an alleged error in awarding pain and suffering damages to the personal representatives of the estates of the decedents under a survival action, that is to say, an award to beneficiaries not identified in DOHSA under a recognized cause of action that is wholly distinct from a wrongful death action. See Sea-Land Services v. Gaudet, 414 U.S. 573, 575 n. 2, 94 S.Ct. 806, 810 n. 2, 39 L.Ed.2d 9 (1974) (explaining the distinction between wrongful death actions and survival actions); see also Magruder & Graut, Wrongful Death Within the Admiralty Jurisdiction, 35 Yale L.J. 395, 405 n. 46 (1926) (indicating that a survival action permits the personal representative of a decedent to recover for the cause of action accruing to the decedent in his lifetime for an invasion of his right to personal security, while" }, { "docid": "13054707", "title": "", "text": "eleven states permitted recovery; today, 36 states recognize a wife’s right to be compensated. Christofferson v. Halliburton Co., 534 F.2d 1147 (5th Cir. 1976). Moreover, the United States Supreme Court may be regarded as having implicitly approved compensating the wife of a seaman for loss of consortium in maritime wrongful death actions by holding that a wife may recover for loss of society. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 587, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). In Gaudet, the Supreme Court was asked to extend its holding in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) — that an action for wrongful death is maintainable under federal maritime law — to an action for wrongful death by a longshoreman’s widow, although the decedent had recovered damages during his life for personal injuries. Included in the damages sought in Gaudet was a claim for loss of decedent’s society. Finding that the widow’s damages were distinct from her husband’s the Court delineated the damages for which she and her family might recover: “Our review of [the statutory and common law] authorities, and the policies of maritime law, persuade us that, under the maritime wrongful death remedy, the decedent’s dependents may recover damages for their loss of support, services, and society, as well as funeral expenses.” Gaudet, supra, 414 U.S. at 584, 94 S.Ct. at 814. In determining whether recovery for loss of society (defined as including love, affection, care, attention, companionship, comfort and protection) was recoverable in a wrongful death action, the Court canvassed various state wrongful statutes, finding that a majority permitted such recovery. Thus, allowing compensation for loss of society in maritime wrongful death actions was approved as “aligning] [that] remedy with a majority of state wrongful-death statutes.” Id. at 587-88, 94 S.Ct. at 816. The Court went on to state that its decision was “compelled” if the Court was “to shape the remedy to comport with the humanitarian policy of the maritime law to show ‘special solicitude’ for those who are injured within its jurisdiction.” Id. at 588, 94" }, { "docid": "7340924", "title": "", "text": "intended beneficiaries of the new cause of action as being dependents of the deceased. E.g., id. at 382, 90 S.Ct. at 1778 (“in the case of death, those closest to him [the decedent] — usually spouse and children — seek to recover for their total loss of one on whom they depended”); id. at 385, 90 S.Ct. at 1779 (“courts have recognized ... calculation of loss sustained by dependents or by the estate of the deceased”). In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), the Supreme Court addressed for the first time maritime wrongful death claims for loss of society. The Court held that the widow of a longshoreman killed on state territorial waters could recover damages on her (Sieracki) unseaworthiness claim for loss of support, services and society and for funeral expenses, even though her husband had recovered in his lifetime for his personal injuries. Id. at 583-91, 94 S.Ct. at 814-18; cf. American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) (holding that the wife of a harbor worker nonfatally injured in state waters may sue for loss of society under general maritime law). The Court defined society broadly: The term “society” embraces a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection. Gaudet, 414 U.S. at 585, 94 S.Ct. at 815. But as it did in Moragne, the Court in Gaudet continued to refer to the beneficiaries of its decision as dependents. E.g., id. at 577, 94 S.Ct. at 811 (“the creation of a uniform federal cause of action for maritime death, designed to extend to the dependents of maritime wrongful death victims”); id. at 583, 94 S.Ct. at 814 (“the policy underlying the remedy is to insure compensation of the dependents [of the deceased]”); id. at 584, 94 S.Ct. at 814 (“it is necessary first to identify the particular harms suffered by the dependents”); id. at 585-86, 94 S.Ct. 815 (“the deprivation of these benefits [i.e., loss" }, { "docid": "13054708", "title": "", "text": "and her family might recover: “Our review of [the statutory and common law] authorities, and the policies of maritime law, persuade us that, under the maritime wrongful death remedy, the decedent’s dependents may recover damages for their loss of support, services, and society, as well as funeral expenses.” Gaudet, supra, 414 U.S. at 584, 94 S.Ct. at 814. In determining whether recovery for loss of society (defined as including love, affection, care, attention, companionship, comfort and protection) was recoverable in a wrongful death action, the Court canvassed various state wrongful statutes, finding that a majority permitted such recovery. Thus, allowing compensation for loss of society in maritime wrongful death actions was approved as “aligning] [that] remedy with a majority of state wrongful-death statutes.” Id. at 587-88, 94 S.Ct. at 816. The Court went on to state that its decision was “compelled” if the Court was “to shape the remedy to comport with the humanitarian policy of the maritime law to show ‘special solicitude’ for those who are injured within its jurisdiction.” Id. at 588, 94 S.Ct. at 816. Based on the rationale of Gaudet, the Court of Appeals for the Fifth Circuit has held “that loss of consortium is a compensa-ble harm” in a maritime wrongful death action. Skidmore v. Grueninger, 506 F.2d 716, 728 (1975). The Court concluded that differences between loss of society and loss of consortium were so minor that to allow recovery for one, while denying the other, would amount to “judicial hair-splitting carried to its extreme and would be in utter defiance of the spirit of [Gaudet].” Id. at 728 n. 10. Skidmore involved a wrongful death action. More recently, the same court, has distinguished Skidmore and held that in an action for personal injuries only, the wife of an injured seaman has no right to recover damages for loss of consortium. Christofferson v. Halliburton Co., 534 F.2d 1147 (5th Cir. 1976). The Christofferson court refused to adopt the plaintiff’s thesis that Igneri had lost much of its force due to change in the land laws and the impact of Gaudet. The court determined that" }, { "docid": "7577952", "title": "", "text": "94 S.Ct. 806, 39 L.Ed.2d 9 (1974), that in the case of a longshoreman who died as a result of severe injuries incurred on a vessel in Louisiana navigable waters, “the decedent’s dependents may recover damages for their loss of support, services, and society, as well as funeral expenses.” Id. at 584; see also id. at 591 (“in addition to recovery for loss of support, services, and society, damages for funeral expenses may be awarded under the maritime wrongful-death remedy in circumstances where the decedent’s dependents have either paid for the funeral or are liable for its payment”). The Court next ruled in Higginbotham that the Gaudet allowance of loss-of-society damages to a dependent of a decedent who perished in territorial waters could not be extended to the high seas in view of the DOHSA limitation of damages to “pecuniary loss,” see 436 U.S. at 622-26, 98 S.Ct. at 2013-15, and reiterated this ruling in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 216, 233, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). Both Higginbotham and Tallentire, like Gaudet and Moragne, were suits by dependent widows of the decedents. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), addressed, however, the situation of a nonde-pendent mother who sought loss-of-society damages for the death in territorial waters of her seaman son. The Fifth Circuit had held that “in a general maritime wrongful death action nondependent parents may not recover for loss of society whether or not their deceased children were survived by spouse or child.” Miles v. Melrose, 882 F.2d 976, 989 (5th Cir.1989), aff'd sub nom. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). The Supreme Court affirmed on the differing ground “that there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman,” 498 U.S. at 33, 111 S.Ct. at 326, thus “restor[ing] a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime" }, { "docid": "16683320", "title": "", "text": "Jones Act preempted applicable state death statutes. Moragne, by establishing a federal cause of action for a death in territorial waters caused by unseaworthiness, filled a void in the scheme of federal maritime remedies left by the Jones Act and DOHSA. The Moragne Court noted that “[o]ur recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies . . . ”. Id. at 401, 90 S.Ct. at 1788. Moragne did not discuss the proper measure of damages under the new cause of action of whether the cause of action extended beyond territorial waters. In Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, the Supreme Court partially resolved the damage question left open in Moragne. Gaudet involved a general maritime wrongful death action based on unseaworthiness. There the Court held that the dependents of a longshoreman killed in territorial waters could recover damages for loss of support, services, and society, as well as funeral expenses. By permitting the recovery of damages for loss of society, Gaudet aligned federal maritime wrongful death recovery with a majority of the state wrongful death statutes. 414 U.S. at 587-88, 94 S.Ct. 806. Gaudet was significant since Congress limited wrongful death awards under DOHSA to damages for pecuniary claims. Id. at 586-87, 94 S.Ct. 806. Although the Gaudet decision was broadly written, the Supreme Court later expressly limited the holding of the case to deaths in territorial waters. See Mobil Oil Corp. v. Higgenbotham, 1978, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581. In Higgen-botham, survivors of airplane passengers killed outside state territorial waters sought to recover damages for nonpecuniary claims under general maritime law in addition to damages under DOHSA. The Higgenboth-am Court recognized the value of uniformity of recoveries in maritime actions, but held that the explicit statutory limitation on recovery in high seas death actions to pecuniary losses prevented an extension of the Moragne -remedy beyond territorial waters. 436 U.S. at 625, 98 S.Ct. 2010. The decision did not question, however, the Gau-det holding that" }, { "docid": "10438720", "title": "", "text": "at 772. Further, recent Florida decisions construing general maritime law to deny recovery for loss of society to nondependent parents are in accord with the current Truehart movement in the law. In Lipworth, 592 So.2d 1151, a products liability action against a jet ski manufacturer, the court held “that parents may not recover under general maritime law for the death of a child absent a showing of financial dependence on the child.” Id. at 1158 (citing Perlman, 575 So.2d 216). Plaintiff’s argument relies on Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), Law v. Sea Drilling Corp., 523 F.2d 793 (5th Cir.1975), and Palmer v. Ribax, Inc., 407 F.Supp. 974 (M.D.Fla.1976). However, these cases are neither controlling nor persuasive. In Miles, the Supreme Court limited Gaudet to its narrow facts: “The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen.” 498 U.S. at —, 111 S.Ct. at 325. This language evinces the Supreme Court’s intent to limit Gaudet while expanding the Miles analysis. Plaintiff’s second case, Law, is factually distinguishable from the present case in that the plaintiff in Law was a surviving widow. As Truehart makes clear, “the law generally finds it unnecessary to ask whether one spouse depends on money from the other in order to bestow the legal benefits of marriage.” 672 F.Supp. at 937. Such dependency is presumed. Finally, Plaintiff relies on Palmer, 407 F.Supp. 974, a Middle District of Florida case awarding recovery to nondependent parents for loss of society caused by the drowning death of their child. However, Palmer is by now an anomaly. The case has become a minority view, and is entirely in conflict with the movement in this area of law that has occurred over the last several years. In furtherance of the goal of uniformity in maritime tort law, this Court rejects the rationale of Palmer. As the foregoing case law demonstrates, general maritime law has moved toward a denial of recovery for loss of society where the survivors are not dependent on the decedent. This Court finds the" }, { "docid": "543261", "title": "", "text": "an affirmative defense, cross appellant was under an obligation to prove its allegations by a preponderance of the evidence, and this it clearly failed to do. The cross appellant also contends that Mrs. Skidmore should be barred from recovery because of the doctrine of assumption of risk. However, we feel that this claim, like the claim of contributory negligence, must fall on the basis of failure of proof. Further, this Court has held that the doctrine of assumption of risk does not apply in maritime cases where seamen are not involved. Movible Offshore Co. v. Ousley, 5 Cir., 1965, 346 F.2d 870, 873. III. Recovery for Loss of Society, Consortium and Support The District Court, in granting recovery to appellants, denied their claim for loss of society and consortium on the basis of Canal Barge Co. v. Griffith, 5 Cir., 1973, 480 F.2d 11, and their claim for loss of support on the basis of insufficient evidence, or failure of proof. Subsequent to the decision of the lower court and during the pendency of this appeal, the Supreme Court overturned the Canal Barge line of cases and ruled that survivors in a maritime wrongful death action may be allowed recovery for loss of support, services, society and funeral expenses. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 584, 94 S.Ct. 806, 814, 39 L.Ed.2d 9 (1974). In Sea-Land Services the Supreme Court, without specific mention, implicitly recognized that recovery for loss of consortium should be allowed in maritime wrongful death actions as well. 414 U.S. at 584-590, 94 S.Ct. at 814-817, 39 L.Ed.2d at 20. Following the Supreme Court’s directive that the maritime wrongful death remedy should reflect the “humanitarian policy of the maritime law to show ‘special solicitude’ for those who are injured within its jurisdiction”, 414 U.S. at 588, 94 S.Ct. at 816, 39 L.Ed.2d at 22, we hold that loss of consortium is a compensable harm. Despite its decision to liberalize damage awards in maritime wrongful death actions, the Supreme Court in Sea-Land Services was very much aware of the undesirable possibility of double recoveries. To prevent" }, { "docid": "6270991", "title": "", "text": "apparently anticipated that the 905(b) action would place the vessel owner in the same position as a land-based third-party. The purpose of the [1972] amendments [to the LHWCA] is to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as bringing a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as “unseaworthiness,” “non-delegable duty,” or the like. H.R. Rep. 92-1441, at 4703 (1972), U.S.Code Cong. & Ad.News 1972. It thus appears that Congress did not intend to create the anomalous result reported in the Opinion. Indeed, in Miles, a seaman was murdered aboard ship in state territorial waters. A claim for both survival and wrongful death damages alleged negligence under the Jones Act and for unseaworthiness under general maritime law. The Supreme Court held that a non-dependent parent cannot recover loss of society damages and that the decedent’s lost future income is not recoverable to the estate. The Supreme Court ruled that the applicable federal statutes, Death on the High Seas Act, 46 U.S.C. § 761 et seq. (“DOHSA”) and the Jones Act, 46 U.S.C.A. § 688, limit damages to “pecuniary loss” in seamen’s wrongful death and survival actions and, thus, precluded the murdered seaman’s mother from recovering “non-pecuniary loss, such as loss of society,” in a general maritime law action. Miles, 498 U.S. at 20, 111 S.Ct. 317, quoting, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The Second Circuit in Kawasaki, where non-dependent parents of a recreational boater sued for non-pecuniary damages held that non-pecuniary loss of society damages were not available to non-dependent parents under general maritime law. Turning to punitive damages, the Second Circuit held that punitive damages, like loss of society, are “non-pecuniary” and, therefore, are unrecoverable in a wrongful death action based on general maritime law. The Court stated: We are in general agreement with the view that plaintiffs who" }, { "docid": "6271105", "title": "", "text": "worker’s compensation scheme, compelled this result. However, the legislative history of the LHWCA casts doubt on that conclusion. Congress apparently anticipated that the 905(b) action would place the vessel owner in the same position as a land-based third-party. The purpose of the [1972] amendments [to the LHWCA] is to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as bringing a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as “unseaworthiness,” “non-delegable duty,” or the like. H.R.Rep. 92-1441, at 4703 (1972). It thus appears that Congress did not intend to create the anomalous result reported in the Opinion. Indeed, in Miles, a seaman was murdered aboard ship in state territorial waters. A claim for both survival and wrongful death damages alleged negligence under the Jones Act and for unseaworthiness under general maritime law. The Supreme Court held that a non-dependent parent cannot recover loss of society damages and that the decedent’s lost future income is not recoverable to the estate. The Supreme Court ruled that the applicable federal statutes, Death on the High Seas Act, 46 U.S.C. § 761 et seq. (“DORSA”) and the Jones Act, 46 U.S.C.A. § 688, limit damages to “pecuniary loss” in seamen’s wrongful death and survival actions and, thus, precluded the murdered seaman’s mother from recovering “non-pecuniary loss, such as loss of society,” in a general maritime law action. Miles, 498 U.S. at 20, 111 S.Ct. 317, quoting, Sea-Land, Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The Second Circuit in Kawasaki, where non-dependent parents of a recreational boater sued for non-pecuniary damages held that non-pecuniary loss of society damages were not available to non-dependent parents under general maritime law. Turning to punitive damages, the Second Circuit held that punitive damages, like loss of society, are “non-pecuniary” and, therefore, are unrecoverable in a wrongful death action based on general maritime law. The" }, { "docid": "7416705", "title": "", "text": "venture upon hazardous and unpredictable sea voyages.’ ” Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 577, 94 S.Ct. 806, 811, 39 L.Ed.2d 9 (1974), citing Moragne v. States Marine Lines, Inc., 398 U.S. at 387, 90 S.Ct. at 1780. The Court in Gaudet not only held that the wrongful death remedy was independent of any action the decedent may have had for his own personal injuries, but also extended damages to include recovery for loss of society. Gaudet relied on the more expansive state statutes which allowed recovery for loss of society as opposed to DOHSA which limits damages to pecuniary loss. Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 586-87, 94 S.Ct. at 815-16. By analogy, plaintiffs argue that the decision in Gaudet implies that the general maritime wrongful death remedy is more comprehensive and provides for greater recovery than DOHSA, and, therefore, should provide a right of action for nondependent relatives (Plaintiffs’ Memorandum in Opposition, PP. 4-5). This argument is not well-founded. In Gaudet, the Supreme Court clearly intended that the expansion of general maritime law be limited to the measure of damages recoverable by the decedent’s dependents. Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 577, 583-84, 591, 94 S.Ct. at 814, 818. In Gaudet there are repeated statements by the Supreme Court that damages recoverable for a wrongful death are designed to compensate a decedent’s dependents. These statements are consistent with the policy underlying the creation of the general maritime wrongful death remedy — to provide recovery for dependent relatives. Id. at 583, 94 S.Ct. at 814; see also Moragne v. States Marine Lines, Inc., 398 U.S. at 394-96, 90 S.Ct. at 1784-85. Further, the expansive interpretation as to damages in Gaudet was predicated upon the majority of state statutes which allow recovery for loss of society in a wrongful death action. Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 587 n.21, 94 S.Ct. at 816 n.21. Plaintiffs do not even argue that most states allow non-dependent relatives to recover in a wrongful death action. Thus, the rationale supporting the Supreme Court’s decision in Gaudet" }, { "docid": "7340923", "title": "", "text": "statutory chaos. See G. Gilmore & C. Black, The Law of Admiralty § 6-29, at 359 (2d ed. 1975); see also Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 457 (5th Cir.) (enumerating the incongruities and terming them an “unfair and irrational system”), rehearing en banc denied, 775 F.2d 301 (5th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986). Subsequently, in 1970, the Supreme Court overruled The Harrisburg, disposed of the need to look to state law for possible recovery and held that a federal remedy for wrongful death existed under general maritime law. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970) (reversing the dismissal of a widow’s wrongful death claim based on unseaworthiness, where the applicable state statute did not recognize the claim). The Court expressly recognized that the exact parameters of this new cause of action could be defined only after further litigation. Id. at 408, 90 S.Ct. at 1792. But the Court consistently referred to the intended beneficiaries of the new cause of action as being dependents of the deceased. E.g., id. at 382, 90 S.Ct. at 1778 (“in the case of death, those closest to him [the decedent] — usually spouse and children — seek to recover for their total loss of one on whom they depended”); id. at 385, 90 S.Ct. at 1779 (“courts have recognized ... calculation of loss sustained by dependents or by the estate of the deceased”). In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), the Supreme Court addressed for the first time maritime wrongful death claims for loss of society. The Court held that the widow of a longshoreman killed on state territorial waters could recover damages on her (Sieracki) unseaworthiness claim for loss of support, services and society and for funeral expenses, even though her husband had recovered in his lifetime for his personal injuries. Id. at 583-91, 94 S.Ct. at 814-18; cf. American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64" } ]

[ { "docid": "816697", "title": "", "text": "fitted onto the Manitowoc 2592 when it was produced and sold to buyers in 1999, and whether such alteration would negatively have affected the truck’s safety or performance. Should a one-page diagram that is nothing more than an engineer’s version of cut-and-paste suffice as such evidence? Of course not. In fairness to Gilfeather (and Friend), it will not always be clear how an expert is to “test” an expensive mechanical or electrical system such as the Manitowoc 2592 without access to the exact — and potentially proprietary — plans for the system, and without a significant financial outlay. As one district judge in this circuit has noted: Given inherent limitations on access to relevant data, the plaintiff is not required to establish with particularity the costs and benefits associated with the adoption of the suggested alternative design. The plaintiff is not required to produce a prototype design in order to make out a prima facie case. “[Qualified expert testimony on the issue suffices, even though the expert has produced no prototype, if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.” Martin v. Michelin North America, Inc., 92 F.Supp.2d 745, 753 (E.D.Tenn.2000) (quoting Restatement (Third) of Torts § 2 cmt. f (1998)). While Martin does not require that a “prototype” be built in all instances, however, it still insists on expert testimony that “reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.” We can imagine innumerable tests that could have been conducted by Friend — all well short of building a full-fledged prototype of the Manitowoc 2592, but all well beyond drawing a one-page diagram — that would have demonstrated the practicality of his proposed design. And yet Friend failed to conduct any testing at all. B. The General-Acceptance Factor Although Friend’s complete failure to test his proposed design cuts heavily against him, he was able to point to one very important, and very simple, fact about interlocking outriggers: that boom crane trucks similar' to the Manitowoc 2592, made" } ]

[ { "docid": "16080066", "title": "", "text": "the single strand beads which was proprietary in nature and not available to Michelin as a practical matter. Again, this misses the point in the undersigned’s opinion. The overriding question in a defective design case such as this one under the prudent manufacturer test is not what Michelin knew or should have known at the time it put the product on the market; rather, the overriding question is what could it have known as an expert in its field when it put the product into the stream of commerce. See Part II, above. Michelin’s reliance upon Harwell v. American Medical Systems, Inc., 803 F.Supp. 1287 (M.D.Tenn.1992), is misplaced. Ray ex rel. Holman v. BIC Corporation, 925 S.W.2d 527 (Tenn.1996), was decided subsequently to the opinion in Harwell. The jury was entitled to consider the fact that there is no evidence that Michelin conducted any burst tests, outside the arena of litigation it was defending, to determine if the single strand bead was superior in a mismatch situation even though Michelin was well aware that single strand bead was technologically feasible well before the tire in question was put on the market. Michelin had the ability to perform tests to determine the characteristics of its tires in mismatch situations in January of 1990 when this tire was placed on the market. Mr. Carlson had performed mismatch burst tests in 1979 or 1980 while working at MARC, Michelin’s affiliate which designed and tested tires for it. Michelin had the ability to perform burst tests to determine the characteristics of its tires and the tires of other manufacturers. Thus, Michelin had the means and ability to perform tests similar to the UMTRI test if it had wished to do so. The single strand bead had been patented as early as the 1930s. Tr. 76, January 24, P.M. Session. The Restatement (Third) of Torts § 2(b); states that a design is defective if the product could have been made safer by the adoption of a reasonable alternative design. If such a design could have been practically adopted at the time of sale and if" }, { "docid": "16080051", "title": "", "text": "were being mounted on 16.5\" rims and that injuries were resulting. Tr. at 92-95, January 24, P.M. Session. Carlson himself ordered a burst test on Michelin’s 19-strand bead radial tire in a mismatch situation in 1979 or 1980. This was while he worked at MARC, Michelin’s affiliate that designed and tested tires for it. Tr. at 80-81, January 25, P.M. Session. The tire burst at 65 psi, which was within the normal operating pressure of the tire. Michelin has not made the argument that this burst test or the 1990 UMTRI burst tests lacked scientific or engineering validity. And so, the foreseeability of harm when a Michelin 19-strand cable bead radial tire is mounted on a 16.5\" rim and “aired up” to normal operating pressure and the foreseeability that it would happen from time to time were established by the plaintiffs. To establish a prima facie case of defect, the plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiffs harm Given inherent limitations on access to relevant data, the plaintiff is not required to establish with particularity the costs and benefits associated with the adoption of the suggested alternative design. The Restatement (Third) of Torts § 2; cmt. f (1998). The plaintiff is not required to produce a prototype design in order to make out a prima facie case. Id. “[(Qualified expert testimony on the issue suffices, even though the expert has produced no prototype, if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.” Id. (emphasis added). The fact that Goodyear had been using the single strand bead since the mid 1980s in its 16\" light truck tires was evidence which could have convinced the jury that the single strand bead was a “practical” alternative design. Although plaintiffs proved that Goodyear had a single strand bead design incorporated into its Wrangler tire in the mid 1980s, there is no evidence that anyone in the tire industry knew that Goodyear’s tire was a “cure” to the mismatch" }, { "docid": "16080056", "title": "", "text": "to its competitor, Goodyear. And again, the issue under the prudent manufacturer test is not what Michelin knew or should have known in January, 1990; rather, it is what it could have knoum under the existing state of technological and scientific art existing at that time. Certainly, a reasonable jury could have concluded that if the safer, alternative design (the single strand bead) was available to Goodyear, it could have been available to Michelin if Michelin had applied itself to testing and developing it. Michelin stipulated that the single strand bead design was technologically feasible in January, 1990 in order to head off any ruling by the court that plaintiffs could inform the jury that Michelin converted to single strand beads in all of its 16\" light truck tires in 1997. Cf. Fed. R.Evid. 407 (subsequent remedial measures). The undersigned exercised the gate-keeping role that is called for in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). See e.g., Memorandum and Order filed June 15, 1999, at 2-10 [Doc. 162]; Tr. 1-65, January 25, A.M. Session. I will not repeat what I have written and said about Mr. Carlson’s competence to testify in this case; rather, it is incorporated by reference herein. His testimony was helpful to the trier of fact, it was relevant, and it was reliable. That is all Daubert and Kumho require. This case is not Kumho and Carlson appeared in this case as both a fact and expert witness. It is problematical for Michelin to assail him with regard to his testing and work he did at MARC since for at least part of the time he was working on the same tire design as is in question here and doing the work for the benefit of Michelin as a design engineer. His testimony was properly admitted. III. The Ford Correspondence Michelin argues that the undersigned erred in admitting this evidence, stating as follows: Because [Michelin] received summary judgment on Plaintiffs" }, { "docid": "7204009", "title": "", "text": "with the machine’s proper function). Here, Dr. Feinberg asserts that the x-ray machine could have been made safer by utilizing infrared technology, a commonly used device in garage doors, but he did not conduct any testing to determine whether such a design was feasible with an x-ray machine that has a C-arm. Nor did he prepare drawings showing how it would be integrated into Siemens’s x-ray machine or present photographs showing its use with similar machines. See Dancy v. Hyster Co., 127 F.3d 649, 651-52 (8th Cir.1997) (affirming the exclusion of expert’s testimony because he had not designed proposed safety device or pointed to its use on similar machines). Dr. Feinberg also asserts that the x-ray machine could have been made safer by placing a sensor in the C-arm’s motor such that it would stop and/or reverse the C-arm’s path if it detected an increased demand for electric current. He indicated that General Electric (“G.E.”) has a patent on this technology, but offered no further analysis or independent verification that such technology could be incorporated into Siemens’s x-ray machine. (Feinberg Aff. ¶¶ 2, 5.) Indeed, the x-ray machine depicted in the G.E. patent is different and smaller than the x-ray machine in this case. (Sieben Aff. Ex. B.) Furthermore, there is no evidence that G.E. has actually incorporated the technology into any of its x-ray machines or that this technology existed at the time Siemens manufactured its x-ray machine. See Pestel v. Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir.1995) (affirming the exclusion of expert’s testimony on proposed safety device for stump remover because it had never been tested or developed). Dr. Feinberg provided even less information about his proposed audible alarm. Other than pointing out this feature in his report, he has done no research or testing on the utility and/or feasibility of such an alarm. He offered no opinion as to what the volume, pitch or frequency of the proposed alarm should be. Furthermore, he failed to perform any investigation or testing to determine whether Ehlers would have had enough time to move out of the way" }, { "docid": "16080069", "title": "", "text": "it placed the tire in question on the market. The plaintiff was not required to produce a prototype tire in order to make out a prima facie case. “[(¡¡Qualified expert testimony on the issue suffices, even though the expert has produced no prototype, if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.” Id., cmt. f. The Tennessee Products Liability Act makes it clear that consideration in a case such as this one is given to the customary designs, methods, standards, and techniques of manufacturing, inspecting and testing by other manufacturers of similar products. The fact that Goodyear had a single strand bead tire on the market in the mid-1980s goes a long way toward proving that a technologically feasible and practical alternative design was available to Michelin when it placed the subject tires on the market in the mid-1980s. The 1990 UMTRI tests were admissible to prove that the foreseeable risks of harm posed by the Michelin tire could have been reduced or avoided by the adoption of a reasonable alternative design (the Goodyear Wrangler single strand bead radial tire) and the omission of the alternative design rendered the product not reasonably safe. Restatement (Third) of Torts § 2(b). V. Paint on the Wheel Michelin argues that it is entitled to a new trial because it was denied the opportunity to impeach Mr. Martin’s testimony that paint covered the size markings on the wheel at the time he mounted the tire and that the paint was later removed from the wheel rim after he turned it over to his counsel. First of all, Michelin’s cross-examination of Mr. Martin was never restricted. The plaintiffs’ counsel certainly had no incentive to remove paint from the wheel after the fact as that would only make their case have less value. Mr. Carlson stated on cross-examination that he saw the size stamped on the wheel the first time he received the wheel and he was the first expert to examine it. Tr. at 133-134, January 25, P.M. Session. He did no destructive" }, { "docid": "3481062", "title": "", "text": "is one for a jury. Accordingly, we reverse the district court’s grant of summary judgment on Boerner’s failure to warn claims that are not preempted by federal law. B. Design Defect Claims Boerner contends that the court’s grant of summary judgment on his defective design claims was erroneous because it was based on an incorrect assumption that Arkansas law requires a plaintiff to show that a design is defective by demonstrating that a safer alternative design was feasible. Brown & Williamson responds by arguing that in light of Boerner’s failure to demonstrate that Pall Mall cigarettes would not have been unreasonably dangerous had they been manufactured in accordance with his suggested alterations, his evidence was insufficient to support a jury finding that a design defect was the proximate cause of Mrs. Boerner’s illness and death. Despite Brown & Williamson’s arguments to the contrary, our case law makes clear that a defective design can be established under Arkansas law without proof of a safer alternative design. French, 656 F.2d at 298 (“It is apparent that [the statutory] definitions of the key terms in the strict liability statute contain no requirement that a feasible and safer alternative be proven by the plaintiff and we see no reason to impose that requirement.”). “[U]nder Arkansas law the existence, practicality, and technological feasibility of an alternative safe design are not necessary elements of the plaintiffs cause of action, but rather are merely factors that may be considered by the jury in determining whether a product was supplied in a defective condition that rendered it unreasonably dangerous.” Id. at 298-99. Indeed, our review of Arkansas’s products liability law reveals that its general tendency is to submit such factual questions to the jury to weigh in light of all the evidence. See, e.g., Aderhold, 616 S.W.2d at 722-23 (whether “open and obvious” nature of danger posed by product and compliance with industry standard rendered design of product not defective were considerations for jury, not questions of law that could bar recovery); Hill, 884 F.2d at 1070 (whether prescription IUD was sufficiently socially important to fall within the" }, { "docid": "6765418", "title": "", "text": "1182, 1994 WL 599450 (6th Cir.1994) (unpublished). “In crashworthiness caves, courts deny recovery unless the plaintiff establishes, by competent expert testimony, that the defect was responsible to some degree for enhancement of injury to the plaintiff. The plaintiffs proof in such cases must include competent evidence of some practicable, feasible, safer, alternative design.” Id. at *4. Thus, Gray was required to submit to the jury evidence that he would have suffered a lesser injury had skip lock not occurred and that a practicable, feasible, safer, alternative design existed which would have prevented skip lock. Gray presented no proof of either element. The plaintiff presented no testimony suggesting that Gray’s injuries would have been less severe had the seat belt held him within the vehicle during the collision. Moreover, no evidence was presented regarding an alternative design for the restraint system. In fact, the court expressly precluded such testimony because Peterson had not previously identified any safer alternative designs despite interrogatories requesting such information. The plaintiff claims that because the restraint system did not operate as he reasonably expected, he need not submit proof of an alternative design or of the level of injuries he would have incurred had he been restrained. Relying on Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 55 (Ky.App.1999), Gray claims that he need only prove that the restraint system did “not meet the reasonable expectations of the ordinary consumer as to its safety.” In Kentucky, the consumer expectations test does not apply to design defect cases. Hill v. R.J. Reynolds Tobacco Co., 44 F.Supp.2d 837, 842 (W.D.Ky.1999); Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 432 (Ky.1980). Even if the test were applicable, the reasonable ness of a defect presupposes the identification of a defect. -Here, the plaintiff failed to identify any aspect of the restraint system as a probable cause of skip lock. The consumer expectations test does not relieve the plaintiff of the obligation to identify a “provable defect” as the probable cause of his injuries. Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197, 199 (Ky.1976). Because there exists a complete absence" }, { "docid": "7726616", "title": "", "text": "tested his designs nor read any studies of such tests); Pestel v. Vermeer Mfg. Co., 64 F.3d at 384 (8th Cir.1995) (rejecting expert’s proposed alternative design because not tested); Freitas v. Michelin Tire Corp., No. 94 Civ. 1812, 2000 WL 424187, at *2 (D.Conn. Mar. 2, 2000)(admitting engineer’s expert opinion on alternative design in burst tire case where engineer had conducted numerous burst tests on tires, and reviewed burst tests performed by other experts); Jarvis v. Ford Motor Co., No. 92 Civ. 2900, 1999 WL 461813, at *4 (S.D.N.Y. July 6, 1999)(admitting expert’s testimony in design defect case where expert’s theory of causation had been “sufficiently verified through repeated tests on a model that accurately reflects the relevant electrical components on the 1991 Ford Aerostar.”); Stanczyk v. Black & Decker, Inc., 836 F.Supp. 565 (N.D.Ill.1993) (rejecting expert’s proposed alternative design of a guard for allegedly defective saw because no testable design of concept). But see Colombo v. CMI Corp., 26 F.Supp.2d 574 (W.D.N.Y.1998) (admitting testimony of engineering expert because expert need not develop and test a prototype nor provide drawings of alternative design); Surace v. Caterpillar, Inc., No. 94 Civ. 1422, 1995 WL 303895, at *2 (E.D.Pa. May 16, 1995)(admitting testimony of engineering expert after concluding that engineer need not have tested his theory regarding defective warnings). The presence of this factor in a design defect case also ensures that the focus of the jury’s deliberation is on whether the manufacturer could have designed a safer product, not on whether an expert’s proposed but untested hypothesis might bear fruit. The Second Circuit’s most recent discussion of testing in a design defect case took place in Brooks, which involved a teenager whose hand was amputated by an uncovered motor on a motor boat. Brooks, 234 F.3d at 90. The boy’s father sued the manufacturer of the boat, alleging design defect. See id. At issue in Brooks was the admissibility of plaintiffs expert, Mr. Warren, who proffered the opinion that either of his proposed alternative designs, a propeller guard or a kill switch, would have averted the accident. See id. at 91." }, { "docid": "7726615", "title": "", "text": "science, technology and methodology.” Milanowicz v. Raymond Corp., 148 F.Supp.2d 525, 532 (D.N.J.2001)(quotation omitted). While testing is not an “absolute prerequisite” for an expert’s theory of causation or alternative design to be admissible in a design defect case, it is usually critical to show that an expert “adhere[d] to the same standards of intellectual rigor that are demanded in their professional work.” Cummins, 93 F.3d at 369. Adherence to engineering standards of intellectual rigor almost always requires testing of a hypothesis if the expert cannot point to an existing design in the marketplace. See, e.g., Brooks, 234 F.3d at 92 (rejecting proposed alternative design of kill switch); Oddi, 234 F.3d at 156-57 (excluding proffered alternative designs of biomechanical engineer where engineer had not tested either design for a safer bumper on a truck); Watkins, 121 F.3d 984 at 988 (rejecting proposed alternative design because alleged expert made no design drawings and conducted no tests of proposed alternatives) ; Cummins, 93 F.3d at 366 (excluding proposed alternative design of industrial trim press because expert had never tested his designs nor read any studies of such tests); Pestel v. Vermeer Mfg. Co., 64 F.3d at 384 (8th Cir.1995) (rejecting expert’s proposed alternative design because not tested); Freitas v. Michelin Tire Corp., No. 94 Civ. 1812, 2000 WL 424187, at *2 (D.Conn. Mar. 2, 2000)(admitting engineer’s expert opinion on alternative design in burst tire case where engineer had conducted numerous burst tests on tires, and reviewed burst tests performed by other experts); Jarvis v. Ford Motor Co., No. 92 Civ. 2900, 1999 WL 461813, at *4 (S.D.N.Y. July 6, 1999)(admitting expert’s testimony in design defect case where expert’s theory of causation had been “sufficiently verified through repeated tests on a model that accurately reflects the relevant electrical components on the 1991 Ford Aerostar.”); Stanczyk v. Black & Decker, Inc., 836 F.Supp. 565 (N.D.Ill.1993) (rejecting expert’s proposed alternative design of a guard for allegedly defective saw because no testable design of concept). But see Colombo v. CMI Corp., 26 F.Supp.2d 574 (W.D.N.Y.1998) (admitting testimony of engineering expert because expert need not develop and test" }, { "docid": "5881178", "title": "", "text": "Additionally, plaintiff does not adequately allege that “it was feasible to design [Humira] in a safer manner.” Id. Plaintiff asserts that allegations of a safer alternative design are “implicit in the allegation of [the design defect] theory in ¶¶ 78-79 of the Amended Complaint.” Pi’s Opp’n 11. These paragraphs simply allege plaintiffs causes of action for strict liability and negligence, stating that “[a]dditional product liability theories include design defect,” Am. Compl. ¶ 78, and that “Abbott was negligent in the design and testing of the drug Humira,” id. ¶ 79. Essentially, plaintiff argues that it was unnecessary for her to include specific allegations that Abbott could have implemented an alternative design, and that it was sufficient simply to assert a claim for design defect. In fact, this argument has been squarely rejected by New York courts. The plaintiffs in Sabater ex rel. Santana v. Lead Industries Association, Inc., 183 Misc.2d 759, 704 N.Y.S.2d 800 (Sup.Ct.2000), like DiBartolo, had argued that “failure to plead an alternative safer design is not a proper ground to attack a complaint as facially insufficient.” Id. at 804. The court ruled that this argument was “unsupported by existing case law,” noting that “[i]t is well settled that to establish a claim predicated upon a design defect, plaintiffs must present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and that it was feasible to design the product in a safer manner.” Id. Because the plaintiffs had not adequately alleged a safer alternative design, the court dismissed their defective design claim. Id. at 804-05; see also Reed v. Pfizer, Inc., 839 F.Supp.2d 571, 578 (E.D.N.Y.2012) (granting drug manufacturer’s motion to dismiss plaintiffs’ design defect claim under New York and West Virginia law because “Plaintiffs do not plead facts alleging the existence of a feasible alternative design that would make the product safer”). DiBartolo’s eonclusory assertions in paragraphs 78 and 79 of her amended complaint, like the allegations in Sabater and Reed, fail to allege that defendant could have designed its drug more safely. in short, plaintiff fails to" }, { "docid": "4162267", "title": "", "text": "show that the bulldozer’s braking system was defective due to its design or that it was unreasonably dangerous. In establishing a defect in product design, a plaintiff must show something more than that it was “theoretically probable that a different design would have been feasible.” Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 928 (Ky.Ct.App.1988). Under applicable Kentucky law in this diversity case, plaintiff must also demonstrate “more than that a particular injury would not have occurred had the product which caused the injury been designed differently.” Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66, 70 (Ky.1973) (quoting 63 Am.Jur.2d Products Liability § 73, p. 79); Rice, 775 S.W.2d at 928-29 (citing Jones, 502 S.W.2d at 70). Another court, interpreting Kentucky law on this subject, stated that “proof that technology existed, which if implemented would feasibly have avoided a dangerous condition, does not alone establish a defect.” Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336 (4th Cir.), cert. denied, 502 U.S. 820, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991). Like many other state courts, Kentucky courts have encountered difficulty with the meaning of the strict liability concept, “defective condition unreasonably dangerous.” Indeed, in Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780 (Ky.1984), the court stated that for fifteen years “we struggled with the meaning of these words.” McCullough pointed to Nichols v. Union Underwear Co., 602 S.W.2d 429 (Ky.1980), in interpreting § 402A of the Restatement (Second) of Toets, which had been adopted in Kentucky: [ T]he question is whether the product creates “such a risk” of an accident of the general nature of the one in question “that an ordinarily prudent company engaged in the manufacture” of such a product “would not have put it on the market.” McCullough, 676 S.W.2d at 780 (citing Nichols, 602 S.W.2d at 433). The McCullough court pointed out pertinent considerations in these products liability eases to take into account: (1) “feasibility of making a safer product,” (2) “pa-tency of the danger,” (3) “warnings and instructions,” (4) “subsequent maintenance and repair,” (5) “misuse,” and (6) “inherently unsafe characteristics.” Id. The McCullough court held" }, { "docid": "16080052", "title": "", "text": "on access to relevant data, the plaintiff is not required to establish with particularity the costs and benefits associated with the adoption of the suggested alternative design. The Restatement (Third) of Torts § 2; cmt. f (1998). The plaintiff is not required to produce a prototype design in order to make out a prima facie case. Id. “[(Qualified expert testimony on the issue suffices, even though the expert has produced no prototype, if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.” Id. (emphasis added). The fact that Goodyear had been using the single strand bead since the mid 1980s in its 16\" light truck tires was evidence which could have convinced the jury that the single strand bead was a “practical” alternative design. Although plaintiffs proved that Goodyear had a single strand bead design incorporated into its Wrangler tire in the mid 1980s, there is no evidence that anyone in the tire industry knew that Goodyear’s tire was a “cure” to the mismatch problem when Michelin manufactured and distributed the tire in question in January, 1990. But, that is beside the point. Michelin and other tire manufacturers are held to an expert standard of knowledge in the relevant manufacturing community at the time they put their tires on the market. Id., cmt. a. The relevant question under the prudent manufacturer test is not what Michelin knew or should have known at the time it put the tire in question on the market; rather, the question is what could it have known as an expert in its field when it manufactured and sold the tire in January, 1990. Clearly, as demonstrated by Carlson’s testimony, it was capable as early as 1979 of conducting burst tests in mismatch situations to see if a better, safer tire cord was available under the state of the scientific and technological art. It was left to a wheel manufacturer, Budd, to commission the 1990 UMTRI tests which showed that indeed there was a substitute product available in January, 1990 which would have met the" }, { "docid": "7726621", "title": "", "text": "which consists of reviewing and revising BIC’s patents while conjecturing that his revisions present feasible and safer alternatives to the current J-15 lighter, would only be a test of his credibility, not of the reliability of his methodology— which is a matter of law to be decided by the court. b. General Acceptance There is no general acceptance in the engineering community for a methodology that omits testing of a hypothesis. See Daubert, 509 U.S. at 594, 113 S.Ct. 2786 (“General acceptance can yet have a bearing on the inquiry.”)(quotation marks omitted); see also Cacciola, 127 F.Supp.2d at 175 (evaluating the methodology of an engineering expert under Daubert in terms of its general acceptance in the community)(citing Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167). The engineering community emphasizes the importance of testing to ensure even a modicum of reliability: Testing [a] hypothesis may involve years of work during which the engineers may find themselves faced with new problems of developing new materials and new manufacturing processes to fully and effectively realize the new design ... The engineer’s experience will be not unlike that of scientists finding that they must modify their hypothesis as testing it reveals its weaknesses. Henry Petroski, “Reference Guide on Engineering Practice and Methods,” Reference Manual on Scientific Evidence 586 (Federal Judicial Center 2000) (explaining that the testing of a design of “less critical and costly products” follows a similar process to that of bridges and buildings). Implying that Nelson’s methodology would satisfy the Daubert “general acceptance” factor, plaintiffs argue that Nelson’s methodology is reliable because his opinions are “based on” BIC’s own patents. Nelson Dec. ¶ 34; PI. Mem. at 8-9 (also arguing that failsafe technology was “known to” BIC); see also Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir.2000)(admitting expert engineer’s opinion which consisted of presenting Ford’s own designs considered and rejected by Ford during development of truck). Clay, however, is distinguishable. Nelson’s opinions are not based on BIC’s patents, but on “small” and “minor” “revisions,” “modifications” and “adaptations]” to them. Nelson Dec. ¶¶ 27, 29, 35. Plaintiffs present no evidence" }, { "docid": "16080065", "title": "", "text": "out there, a plaintiff can establish a prima facie case of defect by proving the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiffs’ harm. Restatement (Third) of Torts § 2(b); and cmt. f. The plaintiffs are not required to produce a prototype design in order to make out such a prima facie case. Id. The plaintiffs proved that Goodyear had a single strand bead in its Wrangler tires in the mid-1980s. Those single strand beads were shown by plaintiff to have superior strength qualities when subjected to a mismatch situation. It was up to the jury to evaluate whether or not the plaintiffs’ evidence demonstrated that there was a practical alternative design available at the time Michelin put the tire in question on the market. Michelin has never denied during the course of this trial that the single strand bead was technologically feasible at the time its tire was put on the market in January of 1990. Michelin argues that Goodyear had developed equipment for winding the single strand beads which was proprietary in nature and not available to Michelin as a practical matter. Again, this misses the point in the undersigned’s opinion. The overriding question in a defective design case such as this one under the prudent manufacturer test is not what Michelin knew or should have known at the time it put the product on the market; rather, the overriding question is what could it have known as an expert in its field when it put the product into the stream of commerce. See Part II, above. Michelin’s reliance upon Harwell v. American Medical Systems, Inc., 803 F.Supp. 1287 (M.D.Tenn.1992), is misplaced. Ray ex rel. Holman v. BIC Corporation, 925 S.W.2d 527 (Tenn.1996), was decided subsequently to the opinion in Harwell. The jury was entitled to consider the fact that there is no evidence that Michelin conducted any burst tests, outside the arena of litigation it was defending, to determine if the single strand bead was superior in a mismatch situation even though Michelin was well aware that single" }, { "docid": "7356856", "title": "", "text": "1999). Expert testimony may be required in cases in which the question is of a complex and technical nature such that a lay juror could not, without the aid of the expert, infer that a defective condition of the product caused the product’s failure and caused the injury to the plaintiff. See id. In Kentucky design defect cases expert witnesses have explained the relevant elements of the design, pointed out perceived deficiencies or defects in the design, explained what choices the manufacturer made in the design, identified other alternative designs that were available, and pointed out the risks associated with the chosen design as compared with the alternatives available. See Leslie v. Cincinnati Sub-Zero Prods., Inc., 961 S.W.2d 799, 804 (Ky.Ct.App. 1998). However, it is not the expert witness’s role to determine if the product in question is or is not “unreasonably dangerous.” Expert testimony is probably necessary to show the feasibility of an alternative design which would allegedly have prevented an accident; once a feasible alternative design is shown, however, it is for the ju'ry to decide whether the product is unreasonably dangerous. 4A American Law of Products Liability 3d, supra, § 54:81 at p. 54-194 (emphasis added). This approach is illustrated in Leslie, where the court reviewed the deposition testimony of the plaintiffs expert who identified deficiencies in the product and testified that “fail safe” technology, which had been in existence for longer than sixty years, would have prevented the accident. There is no indication that the expert explicitly stated that, in his opinion, the product was “unreasonably dangerous.” Nevertheless, the court found that his testimony was sufficient to overcome defendant’s motion for summary judgment. See id. at 804; see also Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 123 (Ky.1991) (finding that there was “substantial evidence as to whether the design of the product was deficient” even though plaintiffs expert never said that the product was “unreasonably dangerous”). Indeed, in one case, the Supreme Court of Kentucky has held that a trial court did not abuse its discretion when it refused to permit an expert to give" }, { "docid": "3454872", "title": "", "text": "manufacturer does not become strictly liable for damages if the product subsequently becomes unreasonably dangerous unless the manufacturer regains a significant degree of control of the product, and the product is then determined to be unreasonably dangerous before the manufacturer loses control of the product. Bell Helicopter, 594 S.W.2d at 531; Otis Elevator Co. v. Bedre, 758 S.W.2d 953 at 955 (Tex.App.—Beaumont 1988), aff'd in part and rev’d in part, 776 S.W.2d 152 (Tex.1989). “We evaluate whether a product has a design defect in light of the economic and scientific feasibility of safer alternatives.” Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384 (Tex.1995) (citing Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 746 (Tex.1980)). “The degree of feasibility is one factor courts weigh in balancing the utility of a product versus its risks.” Id. (citing Turner v. Gen. Motors Corp., 584 S.W.2d 844, 846, 849 (Tex.1979)). “However, if there are no safer alternatives, a product is not unreasonably dangerous as a matter of law.” Id. (citing Boailand, 609 S.W.2d at 748). “Texas law does not require a manufacturer to destroy the utility of his product in order to make it safe.” Hagans v. Oliver Mach. Co., 576 F.2d 97, 101 (5th Cir.1978). Defendants contend that the jury may have found strict liability in either of two ways, one of which would have been based on legal error. On one hand, the jury may have given credence to plaintiffs’ evidence that Jose’s helmet was unreasonably dangerous at the time of its design or by the time it was sold. The jury may have believed Stalnaker’s testimony that the helmet could have been made safer at the time of its design in 1992 merely by inserting more energy-absorbing foam and using less comfort foam. If the jury reached this conclusion of fact, its verdict would be unassailable, because, by law, if a safer alternative design existed at the time of manufacture and sale, then the product was unreasonably dangerous. On the other hand, if the jury did not believe that a safer alternative existed when the helmet was sold, it must" }, { "docid": "21330974", "title": "", "text": "a safer design during the relevant time period. The Neases disagree, relying on a couple of district court opinions that suggest the West Virginia Supreme Court “has not stated one way or the other whether a design defect claim requires proof of a safer alternative design of the allegedly defective product.” Mullins v. Ethicon, Inc., 117 F.Supp.3d 810, 821 (S.D.W. Va. 2015) (internal quotation marks omitted); Keffer v. Wyeth, 791 F.Supp.2d 539, 547 (S.D.W. Va. 2011). While it is true that West Virginia law on the matter is not crystal clear, we agree with Ford that Morningstar “can only be read to require the production of evidence on reasonable alternative design, to gauge what ‘should have been.’ ” Restatement (Third) of Torts: Products Liability § 2, Reporter’s Note (1998). Although Morningstar does not use the phrase “alternative design,” a plaintiff in a design case, for all practical purposes, must identify an alternative design in order to establish the “state of the art.” See Church v. V.R. Wesson, 182 W.Va. 37, 385 S.E.2d 393, 396 (1989) (holding plaintiff in a defective design case failed to establish a prima facie case because plaintiffs expert identified an alternative design that was not feasible at the time of manufacture and thus failed to prove that defendant’s design was not “state of the art”). Sero testified that safer, proven design alternatives existed during the relevant time period that would have prevented Howard’s accident. One preferable alternative, according to Sero, incorporates a “nipple wipe” to clean contaminants off the cable as it moves. Another alternative identified by Sero utilizes a “boot” which blocks debris and grime from accumulating on the cable. And, a third alternative design that Sero believed would have prevented Howard’s accident simply had a larger gap between the guide tube and the casing cap. Sero pointed out that Ford had been using all of these alternative design features for many years by the time the 2001 Ranger was produced. Sero, however, performed no tests or studies to determine whether, in fact, these older, long-standing designs were involved in fewer binding incidents. According to" }, { "docid": "16080067", "title": "", "text": "strand bead was technologically feasible well before the tire in question was put on the market. Michelin had the ability to perform tests to determine the characteristics of its tires in mismatch situations in January of 1990 when this tire was placed on the market. Mr. Carlson had performed mismatch burst tests in 1979 or 1980 while working at MARC, Michelin’s affiliate which designed and tested tires for it. Michelin had the ability to perform burst tests to determine the characteristics of its tires and the tires of other manufacturers. Thus, Michelin had the means and ability to perform tests similar to the UMTRI test if it had wished to do so. The single strand bead had been patented as early as the 1930s. Tr. 76, January 24, P.M. Session. The Restatement (Third) of Torts § 2(b); states that a design is defective if the product could have been made safer by the adoption of a reasonable alternative design. If such a design could have been practically adopted at the time of sale and if the omission of such a design rendered the product not reasonably safe, the plaintiff establishes defect under Subsection (b). The defendant is thus allowed to introduce evidence with regard to industry practice that bears on whether an alternative design was practicable. Industry practice may also be relevant to whether the omission of an alternative design rendered the product not reasonably safe. While such evidence is admissible, it is not necessarily dispositive. If the plaintiff produces expert testimony to establish that a reasonable alternative design could practically have been adopted, a trier of fact may conclude that the product was defective notwithstanding that such a design was not adopted by any manufacturer or even considered for commercial use, at the time of sale. Id., cmt. d. Even though there may not have been available to Michelin on the commercial market winding machines which would have produced the single strand bead such as that which was incorporated in the Goodyear Wrangler tire, this does not mean that the single strand bead was not “available” to Michelin when" }, { "docid": "16080068", "title": "", "text": "the omission of such a design rendered the product not reasonably safe, the plaintiff establishes defect under Subsection (b). The defendant is thus allowed to introduce evidence with regard to industry practice that bears on whether an alternative design was practicable. Industry practice may also be relevant to whether the omission of an alternative design rendered the product not reasonably safe. While such evidence is admissible, it is not necessarily dispositive. If the plaintiff produces expert testimony to establish that a reasonable alternative design could practically have been adopted, a trier of fact may conclude that the product was defective notwithstanding that such a design was not adopted by any manufacturer or even considered for commercial use, at the time of sale. Id., cmt. d. Even though there may not have been available to Michelin on the commercial market winding machines which would have produced the single strand bead such as that which was incorporated in the Goodyear Wrangler tire, this does not mean that the single strand bead was not “available” to Michelin when it placed the tire in question on the market. The plaintiff was not required to produce a prototype tire in order to make out a prima facie case. “[(¡¡Qualified expert testimony on the issue suffices, even though the expert has produced no prototype, if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.” Id., cmt. f. The Tennessee Products Liability Act makes it clear that consideration in a case such as this one is given to the customary designs, methods, standards, and techniques of manufacturing, inspecting and testing by other manufacturers of similar products. The fact that Goodyear had a single strand bead tire on the market in the mid-1980s goes a long way toward proving that a technologically feasible and practical alternative design was available to Michelin when it placed the subject tires on the market in the mid-1980s. The 1990 UMTRI tests were admissible to prove that the foreseeable risks of harm posed by the Michelin tire could have been reduced or" }, { "docid": "4021414", "title": "", "text": "Furthermore, the record indicates that the court rejected Appellant’s thirly-two interrogatories and instead chose the \"either ... or” interrogatories used in this case. Under these circumstances, it was the court’s responsibility to ensure that the interrogatories were not deficient, i.e., to guarantee that they differentiated between the design and warning claims. Laguna Royalty, 350 F.2d at 823-25. . The parties are correct in asserting that Alabama law governs this appeal. . Richards contends that he has shown that a feasible, safe, alternative design existed by means of the following: (1) tests from 1973 and 1990 demonstrating that certain tires could withstand 200 p.s.i. when mismatched; (2) expert testimo ny stating that the bead wire technology used by these tires had been available since the 1930s; (3) Goodyear Tire Company was regularly using this type of bead by 1985; and (4) Michelin could have used, and at times did use, this type bead. Assuming that the record supports Richards' characterization of the evidence, it still does not address overall safety. The mere fact that stronger tires were made and sold by other manufacturers does not mean that such tires were safer than the Michelin tire at issue here. Had Richards proffered his own experts, perhaps he would have been able to demonstrate greater overall safety. However, on this record, Richards has not made such a showing. . Relying on Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 470 (11th Cir.1993), Richards contends that he need not show proof of a safer, alternative design. However, Reynolds involved liability for mismatched rim parts under the Alabama Extended Manufacturer's Liability Doctrine and it is therefore inapposite to this case. . For all cases filed after June 11, 1987, Alabama law requires that a plaintiff prove wantonness by \"substantial evidence\" to receive compensatory damages. Hamme v. CSX Transp., Inc., 621 So.2d 281, 282-83 (Ala.1993); Rommell v. Automobile Racing Club of Am., Inc., 964 F.2d at 1097 (11th Cir.1992). For claims accruing prior to June 11, 1987, this same standard governed the award of punitive damages. However, for claims accruing on or after June 11, 1987, wantonness" } ]

[ { "docid": "12662471", "title": "", "text": "and would read it. Marsh concluded that the witness intended to appear and give testimony in support of Marsh’s motion for a new trial. However, on March 29, 1982, the trial court denied Marsh’s motion for reconsideration of the prior order entered denying his motion for his new trial. On April 6,1982, Marsh filed his notice of appeal. A summary of the various dates and the occurrences is set forth in the footnote below. As mentioned above, the governing rule is 4(b) of the Federal Rules of Appellate Procedure. The question is whether under that rule the motion for reconsideration of the trial court’s order denying the new trial tolled the time notice of appeal of the original judgment and sentence should have been filed. It is the contention of Marsh that inasmuch as his motion for reconsideration was filed within the period allowed for filing notice of appeal, the time for filing notice of appeal was tolled until the motion for reconsideration was ruled upon. Marsh relies on U.S. v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964) and U.S. v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), per curiam. It is true that the Supreme Court in both Healy and Dieter applied the rule to motions for rehearing. Marsh argues that his motion for reconsideration is, in effect, a motion for rehearing. The difficulty is that this argument closes its eyes to the fact that in this case a motion for a new trial was filed before the motion for reconsideration was filed, and a motion for a new trial is nothing more than a motion for rehearing, and inasmuch as there is not entitlement to two hearings the motion for reconsideration was denied. This motion is like a rehearing for reconsideration. Thus, it might, in some circumstances, be the same as a motion for rehearing. But it is not valid here. Marsh is not entitled to two bites, so to speak. In other words, he is not entitled to two motions for rehearing, and that is what, in substance, is" } ]

[ { "docid": "8888575", "title": "", "text": "in this Court following the entry of the June 31, 2000 order? If the motion did toll, whether the petition for permission was timely filed in this Court following the entry of the July 31, 2000, order denying the motion? The second and the third questions depend on how we answer the first question; so we will address that issue first. A. Plaintiffs’ Rule 23(f) petition is a permissive appeal that we consider under Fed. R.App. P. 5. Unlike Fed. R.App. P. 4(a)(4), which expressly provides for situations when a motion for reconsideration tolls the period to file an appeal, Rule 5 is silent about motions for reconsideration. The Rule 4(a) circumstances in which tolling is appropriate all involve final judgments. See Advisory Committee Notes, subdivision (a)(4) (1967) (indicating that Rule 4(a) only applies to “post trial motions”). In contrast, a class certification order is no final judgment. Instead, a Rule 23(f) petition to appeal under Rule 5 is permissive and interlocutory. Given these differences between Rule 4(a) and Rule 5, we conclude that the Rule 4(a) limits for when a motion for reconsideration tolls the time to appeal do not limit motions for reconsideration under Rule 5. See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 837 (7th Cir.1999). Plaintiffs argue that when a statute like Rule 5 is silent about the effect of a motion for reconsideration, the Supreme Court has announced a common law default rule that a motion for reconsideration tolls the time to appeal. See United States v. Ibarra, 502 U.S. 1, 112 S.Ct. 4, 7, 116 L.Ed.2d 1 (1991) (motion for reconsideration tolled time to appeal motion to suppress under Rule 4(b)); United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976) (motion for reconsideration tolled time to appeal dismissal of indictment); United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 555-59, 11 L.Ed.2d 527 (1964) (same). These cases recognized the “consistent practice in civil and criminal cases ... to treat timely petitions for rehearing the original judgment nonfinal for purposes of appeal as long as the" }, { "docid": "2202499", "title": "", "text": "were given the opportunity to fully brief the jurisdictional issue before the motions panel, and under the circumstances here, we are no better situated than the motions panel to decide the issue of appellate jurisdiction. In any event, the decision of the motions panel was manifestly correct; the Supreme Court’s decision in United States v. Healy squarely controls the question. 376 U.S. 75, 78, 84 5.Ct. 553, 11 L.Ed.2d 527 (1964) (holding that “criminal judgments are nonfxnal for purposes of appeal so long as timely rehearing petitions are pending”); see also United States v. Ibarra, 502 U.S. 1, 6-8, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991) (per curiam); United States v. Dieter, 429 U.S. 6, 7-8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam). The government’s notice of appeal was timely. B. Application of Georgia v. Randolph The sole issue on appeal is whether Randolph requires exclusion of evidence obtained in a warrantless search of a home after a present and objecting occupant is arrested and removed from the home and a co-occupant with authority consents to the search. The district court held that it does and granted Henderson’s motion to suppress. Our review of the court’s legal conclusions is de novo; factual findings and mixed questions of law and fact are reviewed for clear error. United States v. Parker, 469 F.3d 1074, 1077 (7th Cir.2006). A warrantless search of a home is considered per se unreasonable and a violation of the Fourth Amendment unless an established exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is voluntary consent given by a person with authority. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This includes the defendant as the occupant of the home or premises as well as any third parties who have “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); see also United States v. Fields, 371 F.3d" }, { "docid": "22035703", "title": "", "text": "v. Ibarra, 502 U.S. 1, 6-8, 112 S.Ct. 4, 6-7, 116 L.Ed.2d 1 (1991) (government’s motion to reconsider an order suppressing evidence tolls the time for appeal); United States v. Dieter, 429 U.S. 6, 7-9, 97 S.Ct. 18, 18-20, 50 L.Ed.2d 8 (1976) (government’s motion to set aside an order of dismissal tolls the time for appeal); United States v. Healy, 376 U.S. 75, 78-80, 84 S.Ct. 553, 555-57, 11 L.Ed.2d 527 (1964) (government’s petition for rehearing after the dismissal of indictment tolls the time for appeal); United States v. Vicaria, 963 F.2d 1412, 1414 (11th Cir.1992) (a motion for reconsideration of the district court’s grant of a new trial tolls the time for appeal). However, these decisions did not involve a motion to correct an imprisonment sentence and therefore they did not need to address the unambiguous language in § 3582(c)(1)(B) which prohibits a district court from modifying an imprisonment sentence except as “expressly permitted by statute or by Rule 35.” And here the sole issue is correction of an imprisonment sentence. Section 3582(c)(1)(B) does not include a ten-day motion for reconsideration as an exception to the sentence modification prohibition. See Dotz, 455 F.3d at 648 (concluding “there is simply no such thing as a motion to reconsider an otherwise final sentence,” Ibarra does not hold to the contrary, and stressing § 3582 sets forth the limited circumstances in which a sentence can be modified). The fact that the Federal Rules of Criminal Procedure do not expressly provide for motions for reconsideration is not the basis for, or even a concern for, our decision here. Rather, the unambiguous language in § 3582(c)(1)(B) is, coupled with the fact that the only issue before the district court in this case was a request to modify the 324-month imprisonment sentence. The government also relies on district court Local Civil Rule 7.2(E), which provides: “Whenever a party or attorney for a party believes it is absolutely necessary to file a motion to reconsider an order or judgment, the motion shall be filed with the clerk of court within ten (10) days after entry" }, { "docid": "5385975", "title": "", "text": "and not simply the denial of the motion for reconsideration, the appeal is improper. Belgarde’s argument is not persuasive. We have previously held that, “[a] mistake in designating the order being appealed is not fatal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake.” See McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir.1987) (internal quotations and citation omitted). Here, it is clear that the government’s intent was to appeal the dismissal of the Indictment, and Belgarde can attribute no prejudice to the government’s alleged oversight; the government’s failure to specify the order being appealed is not fatal. We believe all parties understood that the government was appealing the dismissal of the Indictment following denial of a motion to reconsider. Belgarde next claims that the government did not file its notice of appeal in a timely manner. “[T]he consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending.” United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (citing United States v. Healy, 376 U.S. 75, 78-79, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964)). A motion for reconsideration is timely if it is filed within the time for appeal, see Dieter, id., and an appeal is timely if it is filed within the time to appeal after the denial of the motion for reconsideration. See United States v. Ibarra, 502 U.S. 1, 4 n. 2, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991) (“we previously made clear that would-be appellants are entitled to the full 30 days after a motion to reconsider has been decided”); United States v. Lefler, 880 F.2d 233, 234 (9th Cir.1989). Here, the government filed the notice of appeal within 30 days after the denial of the motion for reconsideration. The notice was timely and we have jurisdiction to consider the appeal. II The government contends that a state agency is a" }, { "docid": "15065229", "title": "", "text": "even when the appeal was filed prior to the motion to reconsider. We stated: “The next question is the effect of Gargano’s motion for reconsideration on the appeal from the denial of his motion under Rule 35. The procedure for handling Rule 35 motions is governed by the Federal Rules of Criminal Procedure, and although those rules contain no provision for motions to reconsider, the Supreme Court has held that a motion for reconsideration may be filed in a criminal case and that if filed within the time allowed for an appeal it tolls the time for appealing, just like a timely motion under Rule 59(e) [of the Federal Rules of Civil Procedure]. United States v. Healy, 376 U.S. 75, 77-80, 84 S.Ct. 553, 554-56, 11 L.Ed.2d 527 (1964); see also United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam); Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir.1985); cf. In re X-Cel Inc., 823 F.2d 192, 193 (7th Cir.1987). Gargano had 10 days to appeal from the denial of his Rule 35 motion, see Fed.R. App.P. 4(b), and he filed his motion for reconsideration within that time. Therefore, the time for appeal was tolled.” 826 F.2d at 611-12. Applying Healy, Dieter and Gargano to our case, we note that the government’s motion for reconsideration was filed within the time for its appeal of the district court’s post-trial dismissal of count 3 that had alleged a violation of 18 U.S.C. § 2252(a)(1). Filing this motion rendered the district court’s September 28, 1988 judgment non-final, tolled the time for appeal and deprived us of jurisdiction over the appeal until such time as the district court rules on the motion for reconsideration. Because the district court has not ruled on the government’s motion for reconsideration, we lack jurisdiction over Kal-inowski’s appeal. On the basis of much the same analysis, we must also conclude that the government’s motion for reduction of illegal sentence, directed to the sentence imposed pursuant to Kalinowski’s conviction on count 4 for receiving child pornography that had been" }, { "docid": "8888576", "title": "", "text": "Rule 4(a) limits for when a motion for reconsideration tolls the time to appeal do not limit motions for reconsideration under Rule 5. See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 837 (7th Cir.1999). Plaintiffs argue that when a statute like Rule 5 is silent about the effect of a motion for reconsideration, the Supreme Court has announced a common law default rule that a motion for reconsideration tolls the time to appeal. See United States v. Ibarra, 502 U.S. 1, 112 S.Ct. 4, 7, 116 L.Ed.2d 1 (1991) (motion for reconsideration tolled time to appeal motion to suppress under Rule 4(b)); United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976) (motion for reconsideration tolled time to appeal dismissal of indictment); United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 555-59, 11 L.Ed.2d 527 (1964) (same). These cases recognized the “consistent practice in civil and criminal cases ... to treat timely petitions for rehearing the original judgment nonfinal for purposes of appeal as long as the petition is pending.” Dieter, 97 S.Ct. at 19; see also Ibarra, 112 S.Ct. at 5; Healy, 84 S.Ct. at 555-56. While the Healy-Dieter-Ibarra line of cases does not directly address the situation presented by this case, we find these cases persuasive and can today think of no good reason to deviate from the general rule that a motion for reconsideration tolls the time to appeal. See Blair, 181 F.3d at 837 (“[A] motion for reconsideration filed within ten days of ‘an order of a district court granting or denying class action certification’ defers the time for appeal until after the district judge has disposed of the motion.”). Instead, we think that the policies implicated by these cases apply with particular vigor to a Rule 23(f) petition. Appellate review of a class certification order should be an avenue of last resort. See generally Prado-Steiman v. Bush, 221 F.3d 1266, 1273-74 (11th Cir.2000) (emphasizing considerations that warrant against interlocutory review of class certification orders). The Advisory Committee Notes explain that a Rule 23(f) petition should not “disrupt" }, { "docid": "3175215", "title": "", "text": "filed after the 10-day period, no matter how styled, are to be treated as Rule 60(b) motions, which do not affect the validity of a notice of appeal and do not restart the time for filing a notice of appeal. See Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Branum v. Clark, 927 F.2d 698, 704 (2d Cir.1991). If Section 2255 Rule 11 incorporates all aspects of Rule 4(a)’s provisions concerning appeals, it implies that orders denying section 2255 motions are subject to the 10-day motions provided by Rules 50(b), 52(b), and 59, and perhaps implies that they are also subject to a Rule 60(b) motion. Case law has accepted both implications. Understanding how this has occurred begins with the Supreme Court’s rulings in United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), and United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), that post-judgment motions for rehearing may be filed in criminal cases. In Healy and Dieter the Supreme Court permitted the Government to seek reconsideration of a district court ruling dismissing an indictment in a criminal case despite the absence of any provision explicitly authorizing such reconsideration. The Court relied upon “traditional and virtually unquestioned practice.” Dieter, 429 U.S. at 8 n. 3, 97 S.Ct. at 20 n. 3 (quoting Healy, 376 U.S. at 79, 84 S.Ct. at 556). The Court also ruled that the filing of a request for reconsideration was timely, in the absence of any specified time limit, if filed within the time for appeal; that a timely request for reconsideration tolls the time for appeal; and that the time for appeal, tolled by a timely motion, runs from the date the motion is denied. Dieter, 429 U.S. at 8, 97 S.Ct. at 19; Healy, 376 U.S. at 77-80, 84 S.Ct. at 555-57; see Browder, 434 U.S. at 268-69, 98 S.Ct. at 562-63. Once the Section 2255 Rules established that a section 2255 motion was a motion “in” the" }, { "docid": "23588585", "title": "", "text": "States — the litigant that persuaded the Supreme Court in each of these cases that motions to reconsider are proper, and do suspend the time for appeal until they have been resolved. Healy, Dieter, and Ibarra cannot be understood as for the benefit of prosecutors only; they rest on “traditional and virtually unquestioned practice,” which does not recognize such a distinction. And the Justices took the precaution of saying exactly that in Healy: “no difference in treatment is intended between appealable judgments and those reviewable by certiorari, or between criminal defendants and the United States.” 376 U.S. at 79, 84 S.Ct. 553. The dicta in Griffin mean no more than that motions to reconsider are not covered, one way or the other, by the Federal Rules of Criminal Procedure. We are not authorized to overrule the Supreme Court and did not purport to do so. Nor did the-panel in Griffin question decisions in this circuit and elsewhere that have followed and applied Healy, Dieter, and Ibarra. See United States v. Henderson, 536 F.3d 776, 778-79 (7th Cir.2008); United States v. Kalinowski, 890 F.2d 878, 880-82 (7th Cir.1989); United States v. Gargano, 826 F.2d 610, 611-12 (7th Cir.1987). Accord, United States v. Phillips, 597 F.3d 1190, 1199-1200 (11th Cir.2010); United States v. Aguirre, 214 F.3d 1122, 1124 (9th Cir.2000). Rollins filed his motion to reconsider within the time available for appeal and sought a substantive modification of the judgment. The motion therefore suspended the finality of the district court’s order. That Rollins cited Civil Rule 59 is harmless; Healy and the common law supply all the authority needed. Rollins filed an appeal within 10 (countable) days of the district court’s order denying his motion for reconsideration, so his appeal is timely with respect to both the decision of April 15 and the order of May 1, and we proceed to the merits of the district court’s order of April 15 denying Rollins’s motion for relief under Rule 33. As we mentioned earlier, the district court denied the motion because none of the evidence on which Rollins relies is “newly discovered.” The" }, { "docid": "23082175", "title": "", "text": "of appeal untimely? i. The literal requirements of Rule 4(b) Rule 4(b) of the Federal Rules of Appellate Procedure provides in pertinent part: b. Appeals in Criminal Cases. ... When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant. The cross-appellees argue that the Government’s August 29th notice of appeal from the cross-appellees’ methamphetamine sentences, filed more than thirty days after the district court’s formal entries of judgment or the cross-appellees’ respective notices of appeal, is untimely. Cross-appel-lees further argue that the Government’s notice was untimely because the district court’s order denying the Government’s motions for reconsideration is not an “order” within the meaning of Rule 4(b), since no statute or rule authorized the filing such a motion or an appeal therefrom. Because the requirements of Rule 4(b) are both “ ‘mandatory and jurisdictional,’ ” Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (citation omitted), the cross-appellees contend that we have no jurisdiction to hear the Government’s cross-appeal. ii. The Healy doctrine The Government does not dispute that the literal requirements of Rule 4(b) were violated, but instead contends that there is a well-established common-law exception to Rule 4(b) that applied: a motion for reconsideration submitted to the district court tolled the period for filing a notice of appeal until the motion for reconsideration was denied by the district court. There are numerous Supreme Court cases containing this judicial gloss on Rule 4(b). See, e.g., United States v. Ibarra, — U.S. -, ---, 112 S.Ct. 4, 5-6, 116 L.Ed.2d 1 (1991); United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976); United States v. Healy, 376 U.S. 75, 78-79, 84 S.Ct. 553, 555-56, 11 L.Ed.2d 527 (1964); see also United States v. Lewis, 921 F.2d 563, 564 (5th Cir.1991) (citing Healy). Such cases have held that, despite the absence" }, { "docid": "22131223", "title": "", "text": "respondent nor his passenger had a valid operator’s license, the officers impounded the car and transported respondent and his passenger to a Western Union office. The officers then went to the towing service lot and searched the car a second time. They found cocaine in the trunk. Respondent filed a pretrial motion to suppress the evidence found in the second search. Among the theories on which the Government originally contested the motion was that the second search had been conducted pursuant to respondent’s continuing consent. However, before the District Court ruled on the suppression motion, the Government abandoned the continuing consent theory in papers filed with the court, citing a lack of legal support for its position. On November 15, 1989, after an evidentiary hearing, the District Court granted the motion to suppress and noted in its order the Government’s abandonment of the continuing consent theory. 725 F. Supp. 1195, 1200 (Wyo. 1989). On December 13,1989, the Government filed with the District Court a “Motion for Reconsideration of Suppression Order.” The sole basis for the Government’s motion was its reassertion of the continuing consent theory. On January 3, 1990, the District Court denied the motion. The Government noticed its appeal on January 30, 1990, less than 30 days after the denial of the motion for reconsideration but 76 days after the initial suppression order. A divided panel of the Tenth Circuit dismissed the appeal as untimely, holding that the Government’s motion to reconsider did not “toll” the 30-day period to appeal which began to run on the date of the initial order. In the course of its opinion, the Court of Appeals rejected the Government’s argument that this Court’s decisions in United States v. Healy, 376 U. S. 75 (1964), and United States v. Dieter, 429 U. S. 6 (1976) (per curiam), controlled the decision. In United States v. Healy, supra, we said: “The question, therefore, is simply whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the Court" }, { "docid": "14811038", "title": "", "text": "in more serious criminal conduct. Ibarra next argues that even assuming the first search was constitutional, the second was not because Ibarra had affirmatively revoked his consent to search when he closed and locked the trunk. Initially the Government argued that the second search was conducted pursuant to Ibarra’s “continuing consent.” Prior to the suppression hearing in this matter, however, the Government abandoned this position and argued instead that although the second search was illegal, see, generally United States v. Recalde, 761 F.2d 1448 (10th Cir.1985) (second search after the vehicle has been seized requires a second consent), it nevertheless should be upheld under the “inevitable discovery doctrine,” in that the cocaine would have been discovered eventually when the officers conducted an inventory search of the vehicle. The Government’s argument, of course, assumes that the officers could have conducted such a search. An inventory search will be upheld only if it is reasonable under the fourth amendment in light of the facts and circumstances of the particular case. Opperman, 428 U.S. at 375, 96 S.Ct. at 3100. The purposes for an inventory search are to protect the owner’s property while in police custody; to protect the police against claims of lost or stolen property; and to protect the police from potential danger. Id. at 369, 96 S.Ct. at 3097. In Opperman, the defendant’s vehicle had been seized by police and impounded for numerous parking violations. After impounding the vehicle, the police conducted an inventory search and discovered contraband, which the defendant sought to have suppressed on fourth amendment grounds. In a plurality opinion, the Supreme Court upheld the search, finding that the “police were indisputably engaged in a caretaking search of a lawfully impounded vehicle,” and that “[t]he owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings.” Id. at 375, 96 S.Ct. at 3100 (emphasis added). Under Opperman an inventory search is reasonable when, at a minimum, it is incident to a lawful impoundment and not conducted as “a pretext" }, { "docid": "22567425", "title": "", "text": "is relaxed. For example, most timely motions for new trial, Fed.R.Crim.P. 33, or timely motions in arrest of judgment, Fed.R.Crim.P. 34, stall the running of the appeal period and permit an appeal to be taken from the judgment of conviction, should it stand, “within 10 days after the entry of an order denying the [Rule 33 or Rule 34] motion.” Fed.R.App.P. 4(b). Post-judgment motions apart from those expressly enumerated in Fed.R.App.P. 4(b) can have the same suspensory effect. The paradigmatic example is a timely motion for rehearing or reconsideration. See United States v. Ibarra, — U.S. —, —, 112 S.Ct. 4, 6-7, 116 L.Ed.2d 1 (1991) (per cu-riam) (holding that government’s timely motion for reconsideration restarted the appeal period with respect to the underlying judgment as of the date when the district court denied the motion); United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976) (per curiam) (noting that “the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfi-nal for purposes of appeal for as long as the petition is pending”); United States v. Healy, 376 U.S. 75, 78-80, 84 S.Ct. 553, 555-56, 11 L.Ed.2d 527 (1964); United States v. Carr, 932 F.2d 67, 71-72 (1st Cir.), cert. denied, — U.S. —, 112 S.Ct. 112, 116 L.Ed.2d 82 (1991); United States v. Gallardo, 915 F.2d 149, 150 n. 2 (5th Cir.1990), cert. denied, 498 U.S. 1038, 111 S.Ct. 707, 112 L.Ed.2d 696 (1991). B. Framing The Issue. The pivotal question here is whether appellant’s post-judgment motion is of this sus-pensory genre. If the filing of the motion did not interrupt the progress of the appeal period, then Fed.R.App.P. 4(b) applies without dilution and Morillo’s notice of appeal, filed more than 10 days after entry of judgment, is a nullity. To avoid this result, appellant must convince us that bringing the March 23 motion suspended the running of the appeal period by rendering the original judgment nonfinal for appeal purposes, or, put in its simplest aspect, extended the time within which" }, { "docid": "19706567", "title": "", "text": "of appeal is timely only if the ninety day period began to run from the date the motion for reconsideration was denied. We have previously stated that a timely motion for reconsideration pursuant to tax court rule 161 does not terminate the time for filing a notice of appeal. Trohimovich v. C.I.R., 776 F.2d 873, 875 (9th Cir.1985). We relied on the language of Fed.RApp.P. 13(a), which states that motions to vacate or revise a decision terminate the running of the time for appeal. Id. Rule 13(a) does not mention motions for reconsideration. Our conclusion in Trohimovich is inconsistent with a subsequent Supreme Court decision. In United States v. Ibarra, 502 U.S. 1, 6-7, 112 S.Ct. 4, 6-7, 116 L.Ed.2d 1 (1991) (per curiam), the Supreme Court held that the period for filing an appeal in a criminal case began to run on the date the district court denied the Government’s motion for reconsideration. The Court applied the “ ‘well-established rule in civil cases,’ ” that the period for filing an appeal begins with denial of a petition for rehearing, which is akin to a motion for reconsideration. Id. at 4, 112 S.Ct. at 5 (quoting United States v. Healy, 376 U.S. 75, 78, 84 S.Ct. 553, 555, 11 L.Ed.2d 527 (1964)). This approach is not based on an express statute or rule, but rather on “‘tradition and virtually unquestioned practice.’” United States v. Dieter, 429 U.S. 6, 8 n. 3, 97 S.Ct. 18, 19 n. 3, 50 L.Ed.2d 8 (1976) (per curiam) (quoting Healy, 376 U.S. at 79, 84 S.Ct. at 556). Because Trohimovich is inconsistent with Ibarra, we apply Ibarra’s holding that, absent an express rule to the contrary, a motion for reconsideration terminates the running of the ninety day limitations period. The benefits of the general rule set forth in Ibarra are equally applicable to tax cases. If the time for appeal begins running after denial of a motion for reconsideration, then the tax court has an opportunity to correct its own alleged errors. This procedure reduces the burden placed on courts of appeal. Ibarra, 502 U.S." }, { "docid": "2202498", "title": "", "text": "the district court to reconsider its order on July 21, within the 30-day period, and then filed its notice of appeal within 30 days of the district court’s denial of the motion to reconsider. After both parties filed briefs addressing appellate jurisdiction, a motions panel of this court denied the motion to dismiss. Decisions by motions panels do not “resolve definitively the question of our jurisdiction, and we are free to re-examine” the question when the merits panel hears the case. United States v. Lilly, 206 F.3d 756, 760 (7th Cir.2000). Often a motions panel must decide an issue “on a scanty record,” and its ruling is “not entitled to the weight of a decision made after plenary submission.” Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir.1991). Nevertheless, when the merits panel is no better equipped to make a decision than the motions panel— particularly regarding questions of appellate jurisdiction — “honoring the original jurisdictional decision is the more prudent course.” Moss v. Healthcare Compare Corp., 75 F.3d 276, 280 (7th Cir.1996). Both parties were given the opportunity to fully brief the jurisdictional issue before the motions panel, and under the circumstances here, we are no better situated than the motions panel to decide the issue of appellate jurisdiction. In any event, the decision of the motions panel was manifestly correct; the Supreme Court’s decision in United States v. Healy squarely controls the question. 376 U.S. 75, 78, 84 5.Ct. 553, 11 L.Ed.2d 527 (1964) (holding that “criminal judgments are nonfxnal for purposes of appeal so long as timely rehearing petitions are pending”); see also United States v. Ibarra, 502 U.S. 1, 6-8, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991) (per curiam); United States v. Dieter, 429 U.S. 6, 7-8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam). The government’s notice of appeal was timely. B. Application of Georgia v. Randolph The sole issue on appeal is whether Randolph requires exclusion of evidence obtained in a warrantless search of a home after a present and objecting occupant is arrested and removed from the home and a co-occupant with" }, { "docid": "22035702", "title": "", "text": "the plenary initial sentencing and the more truncated § 3582 sentencing proceeding. See United States v. Dotz, 455 F.3d 644, 648 (6th Cir.2006) (rejecting defendant’s “creative characterization” of his Rule 35(a) motion as a motion for reconsideration and concluding that “[i]n the sentencing context, there is simply no such thing as a ‘motion to reconsider’ an otherwise final sentence” given the limited circumstances under § 3582(c) in which a sentence can be modified); accord United States v. Houston, 529 F.3d 743, 753 n. 2 (6th Cir.2008), cert. denied,—U.S.-, 129 S.Ct. 2764, 174 L.Ed.2d 270 (2009). For these reasons, we conclude the district court lacked jurisdiction on January 26, 2009 to modify Phillips’s 324-month sentence imposed on December 5, 2008. C. Motions for Reconsideration The government correctly points out that the Supreme Court and this Court have permitted motions for reconsideration in criminal cases notwithstanding the fact that the Federal Rules of Criminal Procedure do not expressly provide for them and have concluded such motions toll the time for filing appeals in criminal cases. United States v. Ibarra, 502 U.S. 1, 6-8, 112 S.Ct. 4, 6-7, 116 L.Ed.2d 1 (1991) (government’s motion to reconsider an order suppressing evidence tolls the time for appeal); United States v. Dieter, 429 U.S. 6, 7-9, 97 S.Ct. 18, 18-20, 50 L.Ed.2d 8 (1976) (government’s motion to set aside an order of dismissal tolls the time for appeal); United States v. Healy, 376 U.S. 75, 78-80, 84 S.Ct. 553, 555-57, 11 L.Ed.2d 527 (1964) (government’s petition for rehearing after the dismissal of indictment tolls the time for appeal); United States v. Vicaria, 963 F.2d 1412, 1414 (11th Cir.1992) (a motion for reconsideration of the district court’s grant of a new trial tolls the time for appeal). However, these decisions did not involve a motion to correct an imprisonment sentence and therefore they did not need to address the unambiguous language in § 3582(c)(1)(B) which prohibits a district court from modifying an imprisonment sentence except as “expressly permitted by statute or by Rule 35.” And here the sole issue is correction of an imprisonment sentence. Section 3582(c)(1)(B)" }, { "docid": "23082176", "title": "", "text": "Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (citation omitted), the cross-appellees contend that we have no jurisdiction to hear the Government’s cross-appeal. ii. The Healy doctrine The Government does not dispute that the literal requirements of Rule 4(b) were violated, but instead contends that there is a well-established common-law exception to Rule 4(b) that applied: a motion for reconsideration submitted to the district court tolled the period for filing a notice of appeal until the motion for reconsideration was denied by the district court. There are numerous Supreme Court cases containing this judicial gloss on Rule 4(b). See, e.g., United States v. Ibarra, — U.S. -, ---, 112 S.Ct. 4, 5-6, 116 L.Ed.2d 1 (1991); United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976); United States v. Healy, 376 U.S. 75, 78-79, 84 S.Ct. 553, 555-56, 11 L.Ed.2d 527 (1964); see also United States v. Lewis, 921 F.2d 563, 564 (5th Cir.1991) (citing Healy). Such cases have held that, despite the absence of a governing statute or procedural rule, a motion for reconsideration in a criminal case filed within the original period in which an appeal is permitted “render[s] the original judgment nonfinal for purposes of appeal for as long as the petition is pending.” Dieter, 429 U.S. at 8, 97 S.Ct. at 19. The Court noted this “well-established rule in civil cases” also applies in the criminal context. Healy, 376 U.S. at 78, 84 S.Ct. at 555. The Court was not concerned about the absence of language in a statute or procedural rule providing for this particular procedural device. Id. at 79-80, 84 S.Ct. at 556-57. Furthermore, the Court has been quite permissive about what qualifies as a “motion for reconsideration” — i.e., any request, however phrased, that a district court “ ‘reconsider [a] question decided in the case’ in order to effect an ‘alteration of the rights adjudicated.’ ” Ibarra, — U.S. at -, 112 S.Ct. at 7 (citation omitted). Therefore, although submitted as a “Motion for Re-sentencing,” the Government’s post-trial motions qualified as a" }, { "docid": "14811037", "title": "", "text": "be given continuously during not less than the last 100 feet traveled by the vehicle before turning.” Ibarra argues that this statute does not require that a motorist signal before passing. It is beyond dispute, however, that the statute does require that a motorist pass only after he can do so with reasonable safety. At the hearing in this matter, the officer testified that he observed Ibarra cut off a second vehicle while passing, which would indicate a possible violation of Wyo.Stat. § 31-5-209(a)(i). Additionally, Mahaffey testified that Ibarra made both passes abruptly and that he weaved intermittently. It would therefore appear that Mahaffey had both probable cause as well as a reasonable suspicion to stop and detain Ibarra. See, e.g., Norman v. State, 747 P.2d 520, 521-22 (Wyo.1987) (erratic driving probable cause to stop). Although this is a close case on the pretext issue and is similar to Smith, the court finds under the circumstances that a reasonable officer would have been interested in stopping Ibarra independent of any hope that he was engaged in more serious criminal conduct. Ibarra next argues that even assuming the first search was constitutional, the second was not because Ibarra had affirmatively revoked his consent to search when he closed and locked the trunk. Initially the Government argued that the second search was conducted pursuant to Ibarra’s “continuing consent.” Prior to the suppression hearing in this matter, however, the Government abandoned this position and argued instead that although the second search was illegal, see, generally United States v. Recalde, 761 F.2d 1448 (10th Cir.1985) (second search after the vehicle has been seized requires a second consent), it nevertheless should be upheld under the “inevitable discovery doctrine,” in that the cocaine would have been discovered eventually when the officers conducted an inventory search of the vehicle. The Government’s argument, of course, assumes that the officers could have conducted such a search. An inventory search will be upheld only if it is reasonable under the fourth amendment in light of the facts and circumstances of the particular case. Opperman, 428 U.S. at 375, 96 S.Ct." }, { "docid": "22131222", "title": "", "text": "Per Curiam. The United States District Court for the District of Wyoming ordered that certain evidence which the Government proposed to use in respondent’s pending criminal trial be suppressed. The Government appealed the order to the Court of Appeals for the Tenth Circuit, but that court dismissed the Government’s appeal. It held that the 30-day period in which to file an appeal began to run on the date of the District Court’s original suppression order, rather than on the date the District Court denied the Government’s motion for reconsideration. 920 F. 2d 702 (1990). We grant the Government’s petition for certiorari and vacate the judgment of the Court of Appeals. h— Respondent was indicted for possession of cocaine with intent to distribute. The circumstances leading to the indictment are largely uncontested. Law enforcement officers stopped respondent’s car for a suspected operating violation. The officers questioned respondent and asked for permission to search the car. Respondent granted the request and a brief search was conducted but no cocaine was identified or seized. However, noting that neither respondent nor his passenger had a valid operator’s license, the officers impounded the car and transported respondent and his passenger to a Western Union office. The officers then went to the towing service lot and searched the car a second time. They found cocaine in the trunk. Respondent filed a pretrial motion to suppress the evidence found in the second search. Among the theories on which the Government originally contested the motion was that the second search had been conducted pursuant to respondent’s continuing consent. However, before the District Court ruled on the suppression motion, the Government abandoned the continuing consent theory in papers filed with the court, citing a lack of legal support for its position. On November 15, 1989, after an evidentiary hearing, the District Court granted the motion to suppress and noted in its order the Government’s abandonment of the continuing consent theory. 725 F. Supp. 1195, 1200 (Wyo. 1989). On December 13,1989, the Government filed with the District Court a “Motion for Reconsideration of Suppression Order.” The sole basis for the" }, { "docid": "21246038", "title": "", "text": "officer.’ ” Aplt’s App. vol. I, at 158 (quoting United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006)). Here, the court concluded, the mistake at issue — relying on Ms. Ricker’s consent when she lacked actual or apparent authority — was made by the officers rather than by another party {e.g., a judicial officer issuing a warrant). II. DISCUSSION On appeal, the government challenges the district court’s grant of Mr. Cos’s motion to suppress, arguing that Ms. Ricker had both actual and apparent authority to consent to the search of the apartment. In the alternative, the government maintains that the district court erred in refusing to apply the good-faith exception to the exclusionary rule. As noted above, we view the record in the light most favorable to Mr. Cos and accept the district court’s factual findings unless clearly erroneous. Nielson, 415 F.3d at 1198. However, we examine de novo the ultimate legal questions at issue: whether an officer’s conduct violated the Fourth Amendment and whether the good faith exception applies. See United States v. Trotter, 483 F.3d 694, 698 (10th Cir.2007) (reviewing de novo whether a third party had actual or apparent authority); United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000) (reviewing de novo whether the good-faith exception applies). A Appellate Jurisdiction Before addressing the merits, we must first consider whether we have jurisdiction over this appeal. The jurisdictional question concerns the date that the government filed its notice of appeal, June 29, 2006. As we have noted, before filing this notice, the government filed three unsuccessful motions to reconsider the district court’s April 25, 2005 order granting Mr. Cos’s motion to suppress. Under 18 U.S.C. § 3731, which governs interlocutory appeals by the United States in criminal cases, the government must file a notice of appeal within thirty days of the decision from which it appeals. However, a timely motion for reconsideration tolls the thirty-day period until the district court rules upon that motion. See United States v. Ibarra, 502 U.S. 1, 6-7, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991). Generally, the thirty-day period is not" }, { "docid": "5282036", "title": "", "text": "we shall consider the government’s Rule 36 motion as essentially a second motion for reconsideration. No specific rule governs the timeliness of a motion for reconsideration or the effect which such a motion has on the finality of a trial court’s order. The Supreme Court, however, has held that a motion for reconsideration is timely at least “when filed within the original period for review.” United States v. Healy, 376 U.S. 75, 78, 84 S.Ct. 553, 555, 11 L.Ed.2d 527 (1964). Under 18 U.S.C. § 3731, the government had thirty days to appeal the trial court’s suppression order of June 29. Thus, the government was timely with its first reconsideration motion on July 19. The Supreme Court has expressly held that the filing of a rehearing petition extends the time for appeal so that the thirty days begins to run from the time the rehearing petition is denied. Id. Here, the district court denied the government’s first motion for reconsideration on July 31. Consequently, the government’s notice of appeal on August 11 was timely, and the district court’s suppression order had not become final at the time the government made its second motion for reconsideration on August 17. As this court held in United States v. Emens, 565 F.2d 1142, 1144 (9th Cir. 1978), quoting from Zimmern v. United States, 298 U.S. 167, 169-70, 56 S.Ct. 706, 80 L.Ed. 1118 (1936), “[the District Court has] plenary power [within appeal time] to modify his judgment for error of fact or law or even revoke it altogether.” Since the period for appeal had not elapsed, we hold that the district court acted within its power in inviting and entertaining the government’s second request for reconsideration. This holding is not intended to suggest that a party can indefinitely extend the time for appeal by making repeated motions for reconsideration. Here, the government had taken a timely appeal from the suppression order, and the district court itself took the initiative to suggest withdrawal of the appeal and a second reconsideration request. It would be highly unfair to the government, which is itself entitled to" } ]

[ { "docid": "22542282", "title": "", "text": "than state an alternative theory for recovery. Rule 15 (a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), ¶¶ 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. The judgment is reversed and the cause is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Separate memorandum of Mr. Justice Harlan, in which Mr. Justice White joins. I agree with the Court as to the dismissal of petitioner’s appeal by the Court of Appeals. However, as to her motion to vacate the order of the District Court and for leave to amend the complaint, I believe such matters are best left with the Courts of Appeals, and I would dismiss the writ of certiorari, in that respect, as improvidently granted. Rule 59(e) provides: “A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Rule 60 (b) provides in relevant part: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for" } ]

[ { "docid": "13987937", "title": "", "text": "15(a) provides for the amendment of pleadings by leave of court and notes that such leave “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This rule is applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.2003). However, the grant or denial of a motion to amend is committed to the discretion of the district court, and the court may decline to grant leave where there is “any apparent or declared reason” for doing so. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir.1991). The Ninth Circuit has interpreted Foman as identifying “four factors relevant to whether a motion for leave to amend pleadings should be denied: undue delay, bad faith or dilatory motive, futility of amendment, and prejudice to the opposing party.” United States v. Webb, 655 F.2d 977, 980 (9th Cir.1981). The enumerated factors are not of equal weight. Id. (citing Howey v. United States, 481 F.2d 1187 (9th Cir.1973)). “Prejudice is the touchstone of the inquiry under rule 15(a).” Eminence Capital, 316 F.3d at 1052. Absent prejudice, there is a presumption under Rule 15(a) in favor of granting leave to amend. Id. The party opposing leave to amend bears the burden of showing prejudice. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir.1987). DISCUSSION I. Defendant’s Motion for Judgment on the Pleadings The parties have stipulated that the Pension Plan under which Serpa’s retirement benefits were offered is both governed by ERISA and maintained by the defendants. The parties have also stipulated that SBC Services was Serpa’s employer. See Mot. To Strike First Am. Compl., Dec. of Stephen Harris, Exh. B (“Parties’ Stipulation as to Certain Facts Regarding the Pension Plan”), ¶¶ 1-4. Based on these facts and the allegations in the complaint, defendants argue that Serpa’s state causes of action are preempted by ERISA section 514(a). 29 U.S.C. § 1144. Serpa contends that her claims are purely state law causes of action not subject to ERISA preemption" }, { "docid": "22170746", "title": "", "text": "leave to amend whenever “justice so requires,” Fed.R.Civ.P. 15(a)(2), and requests for leave should be granted with “extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). “‘Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.’ ” Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002) (quoting Polish v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir.1991)). We agree with Plaintiffs that they should be granted leave to amend. Prior to Twombly, a complaint would not be found deficient if it alleged a set of facts consistent with a claim entitling the plaintiff to relief. See Conley, 355 U.S. at 45-46, 78 S.Ct. 99. Under the Court’s latest pleadings cases, however, the facts alleged in a complaint must state a claim that is plausible on its face. As many have noted, this is a significant change, with broad-reaching implications. See, e.g., A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. Rev. 431, 433 (2008) (characterizing Twombly as an abrupt and significant departure from the long-standing tradition of liberal notice pleading in the federal courts). Having initiated the present lawsuit without the benefit of the Court’s latest pronouncements on pleadings, Plaintiffs deserve a chance to supplement then-complaint with factual content in the manner that Twombly and Iqbal require. II. Defendants’ Alternative Motion for Summary Judgment Defendants also seek appellate review of the district court’s deferral of their alternative motion for summary judgment. The attempt is misguided and, if it were to succeed, would deny Plaintiffs a fair opportunity to litigate the merits of their claim. A district court’s denial of summary judgment in a qualified immunity case .is not immediately appealable where the court’s order implicates a question of “evidence sufficiency.” See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Tennison v. City & County of S.F., 570 F.3d 1078, 1095 (9th Cir.2009) (holding that disputed issues" }, { "docid": "11239197", "title": "", "text": "to identify anything Plaintiff could plausibly allege that would remedy the defects in the Complaint.” Reply, p. 10. Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend “be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This policy is applied with “extraordinary liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). Once an answer to the complaint has been filed, as is the case here, courts may deny leave to amend where the proposed amendment would be futile, where it is sought in bad faith, where it will create undue delay, or where “undue prejudice to the opposing party will result.” Howey v. United States, 481 F.2d 1187, 1190 (9th Cir.1973); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992). Qualcomm does not assert that amendment is sought in bad faith, will create undue delay, or would prejudice Qual-comm. The Court grants Plaintiff leave to amend. Conclusion IT IS HEREBY ORDERED that the Motion to Dismiss (Doc. # 15) is GRANT ED. The above-captioned action is DISMISSED with leave to amend. Plaintiff may file a first amended complaint within thirty (30) days of the date of this Order. . The Clayton Act “provides a vehicle for private enforcement of the [Sherman Act].” Cargill, Inc., 479 U.S. at 109, 107 S.Ct. 484. Under section 16 of the Clayton Act, “[any] person, firm, corporation, or association shall be entitled to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws.” Id." }, { "docid": "19347222", "title": "", "text": "Farm Fire & Cas. Co., 873 F.2d 1338, 1339-40 (9th Cir.1989) (internal citation omitted). DISCUSSION I. The district court abused its discretion by not addressing Plaintiffs’ vagueness claim on the merits. The district court refused to consider the merits of Plaintiffs’ vagueness challenge because it was not expressly raised in their First Amended Complaint. That ruling was an abuse of discretion: Plaintiffs should have been granted leave to amend their First Amended Complaint to add their new claim. Plaintiffs made their vagueness argument both in their motion for summary judgment and in their opposition to Defendants’ motion for summary judgment. Where plaintiffs “fail[] to raise [a claim] properly in their pleadings, ... [if] they raised it in their motion for summary judgment, they should [be] allowed to incorporate it by amendment under Fed.R.Civ.P. 15(b).” Jackson v. Hayakawa, 605 F.2d 1121, 1129 (9th Cir.1979). And “when issues are raised in opposition to a motion to summary judgment that are outside the scope of the complaint, ‘[t]he district court should have construed [the matter raised] as a request pursuant to rule 15(b) of the Federal Rules of Civil Procedure to amend the pleadings out of time.’ ” Apache Survival Coal. v. United States, 21 F.3d 895, 910 (9th Cir.1994) (quoting Johnson v. Mateer, 625 F.2d 240, 242 (9th Cir.1980)). “[L]eave to amend ‘shall be freely given when justice so requires,’ Fed. R.Civ.P. 15(a), and this policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.2004). “The denial of a motion to amend a complaint is reviewed for abuse of discretion.” Id. First, there is no evidence of bad faith. Second, there was no undue delay because Plaintiffs only fully understood Defendants’ enforcement policies late in the discovery period. Defendants made Plaintiffs aware of the" }, { "docid": "19347223", "title": "", "text": "request pursuant to rule 15(b) of the Federal Rules of Civil Procedure to amend the pleadings out of time.’ ” Apache Survival Coal. v. United States, 21 F.3d 895, 910 (9th Cir.1994) (quoting Johnson v. Mateer, 625 F.2d 240, 242 (9th Cir.1980)). “[L]eave to amend ‘shall be freely given when justice so requires,’ Fed. R.Civ.P. 15(a), and this policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). “Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.2004). “The denial of a motion to amend a complaint is reviewed for abuse of discretion.” Id. First, there is no evidence of bad faith. Second, there was no undue delay because Plaintiffs only fully understood Defendants’ enforcement policies late in the discovery period. Defendants made Plaintiffs aware of the LAPD’s 2008 and 2010 internal memoranda—describing the Task Force’s policy of enforcement—eight days before the discovery cut-off. As discussed in.Part II.B below, the vagueness analysis of a statute includes a review of any limiting interpretation adopted by the enforcement agency. These two memoranda alerted Plaintiffs that Task Force officers had either received ambiguous instructions, or had ignored the explicit directives they had been given. Once Plaintiffs received these key documents, they advanced their vagueness argument. Third, there was no prejudice to Defendants. The district court found that Defendants were not on notice that Plaintiffs would raise a vagueness challenge at summary judgment. Yet the record shows otherwise. After finally receiving Defendants’ 2008 and 2010 internal memoranda, Plaintiffs’ attorney repeatedly asked Defendants during their depositions whether Task Force officers had any criteria to limit their enforcement of Section 85.02, especially when it came to suspects—like Plaintiffs—who did not spend the night in their vehicles. This questioning put Defendants on notice that Plaintiffs were concerned with the vagueness of Section 85.02 and the lack of limiting instructions" }, { "docid": "16101734", "title": "", "text": "permitting the amendment to the scheduling order. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.2000); Johnson, 975 F.2d at 607-08. The district court also did not abuse its discretion under Rule 15 by allowing Corbett to amend his answer. Rule 15(a) provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). “This policy is ‘to be applied with extreme liberality.’ ” Eminence Capital, EEC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.2003) (quoting Owens, 244 F.3d at 712). “Absent prejudice, or a strong showing of any of the remaining Foman [v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id,. Corbett had not previously amended his answer and the amendment was not futile. Further, as we have explained, there was no undue delay, bad faith, dilatory motive or undue prejudice to Farnan. See Waldrip v. Hall, 548 F.3d 729, 732-33 (9th Cir.2008); Owens, 244 F.3d at 712. The district court thus did not abuse its discretion. We therefore turn to the merits of Corbett’s qualified immunity defense. B. 1. The Establishment Clause applies “not only to official condonement of a particular religion or religious belief, but also to official disapproval or hostility toward religion.” Am. Family Ass’n v. City & Cnty. of S.F., 277 F.3d 1114, 1120-21 (9th Cir.2002); see also McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (“[The Establishment Clause] mandates governmental neutrality between ... religion and nonreligion.” (internal quotation marks omitted)). The Supreme Court has long made clear, however, that “the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” Epperson v. Arkansas, 393 U.S. 97, 106, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Even statements ex hibiting some hostility to religion do not violate the Establishment Clause if the government conduct at issue has a secular purpose, does not" }, { "docid": "2736891", "title": "", "text": "party must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331, 106 S.Ct. 2548. The burden then shifts to the non-moving party “and requires that party ... to produce evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.... ” Id.; Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Fed.R.Civ.P. 56(e). A genuine issue of material fact will exist “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). B.Motion to Amend Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given when justice so requires.” The Ninth Circuit has held that “ ‘[t]his policy is to be applied with extreme liberality.’ ” Eminence Capital, L.L.C. v. Aspeos, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir .2001)). Leave to amend, however, is not automatic. The Ninth Circuit considers a motion for leave to amend under five factors: bad faith, undue delay, prejudice to the opposing party, the futility of amendment, and whether the plaintiff has previously amended his or her complaint. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004). The Ninth Circuit has further held that “it is the consideration of prejudice to the opposing party that carries the greatest weight.” Eminence Capital, 316 F.3d at 1052. III. EVIDENTIARY OBJECTIONS A. Declaration of Mary Jo Randall The Court overrules the objections to the Declaration of Mary Jo Randall. B. Declaration of Gavin X. McLeod The Court overrules the objections to Paragraphs 11,13, and 14. C. Declaration of Renee Debroux The Court sustains the objections to Paragraphs 17 and 18. D." }, { "docid": "6649926", "title": "", "text": "the superior court plaintiffs. Instead, Defendants rely on the unsupported assumption that Plaintiffs were “part of a class action lawsuit,” and are thus bound by the superior court’s rulings, even though the superior court denied class certification. 4. Leave to Amend Defendants argue that if this Court dismisses the FAC, it should do so with prejudice because Plaintiffs cannot plead around the admissions they made in the superior court case, cannot correct that they lack standing to sue most of the Defendants, and cannot alter that they already sued their employer in a prior action. According to Defendants, Plaintiffs’ counsel cannot in good faith amend the complaint after learning the facts from six years of litigation in superior court. The Court’s dismissal of Plaintiffs’ claims against various Defendants is without prejudice. Leave to amend is freely granted under Federal Rule of Civil Procedure 15(a). “This policy is ‘to be applied with extreme liberality.’ ” Eminence Capital, LLC. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001)). Defendants have not shown that amendment would be futile or that they would be prejudiced by amendment, as this case is in its early stages. Nevertheless, the allegations in any amended pleading must be made in good faith. The superior court’s order denying class certification indicates that the superi- or court plaintiffs and their counsel (Plaintiffs’ counsel here as well) obtained a great deal of discovery relevant to Plaintiffs’ alter ego theories. Despite this discovery, Plaintiffs’ alter ego allegations in the FAC were made “on information and belief.” To the extent that Plaintiffs plead new alter ego allegations in an amended complaint, these allegations must have a factual basis. Further, any amended pleadings should correct Plaintiffs’ errors in naming certain Defendants. The parties’ briefing and argument evidenced confusion regarding which entities were being sued and which entities should have been sued. B. Motion to Strike In addition to moving to dismiss the FAC, Defendants move to strike: (1) Plaintiffs’ class allegations; and (2) Plaintiffs’ reference to “damages” in their claim under" }, { "docid": "13987936", "title": "", "text": "1542, 1550 (9th Cir.1989). In reviewing a motion under Rule 12(c), the court must assume that the facts alleged by the nonmoving party are true and must construe all inferences drawn from those facts in favor of the nonmoving party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989), cert. denied, 493 U.S. 1079, 110 S.Ct. 1134, 107 L.Ed.2d 1039 (1990). The court need not assume the truth of legal conclusions in the complaint merely because they take the form of factual allegations. 1 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). II. Motion for Leave to Amend A party is entitled to amend its pleadings once as a matter of course before a responsive pleading is served. See Fed.R.Civ.P. 15(a). After a response has been filed, a party may amend its pleadings “only by leave of court or by written consent of the adverse party.” Id. Federal Rule of Civil Procedure 15(a) provides for the amendment of pleadings by leave of court and notes that such leave “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This rule is applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.2003). However, the grant or denial of a motion to amend is committed to the discretion of the district court, and the court may decline to grant leave where there is “any apparent or declared reason” for doing so. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir.1991). The Ninth Circuit has interpreted Foman as identifying “four factors relevant to whether a motion for leave to amend pleadings should be denied: undue delay, bad faith or dilatory motive, futility of amendment, and prejudice to the opposing party.” United States v. Webb, 655 F.2d 977, 980 (9th Cir.1981). The enumerated factors are not of equal weight. Id. (citing Howey v. United States, 481" }, { "docid": "10436722", "title": "", "text": "pursuing qui tam actions. Schumer argues that the district court abused its discretion in declining to permit the amendment because it “would have served judicial economy” since the claims “clearly arose from the same nucleus of fact.” We reject this argument and affirm the district court’s ruling. Failure to permit leave to amend is reviewed for abuse of discretion. Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir.1991). In assessing the propriety of a motion for leave to amend, we consider factors such as “bad faith, undue delay, prejudice to the opposing party, and futility of amendment.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). The circumstances surrounding the motion for leave to amend demonstrate that the motion was made after undue delay. Although Schumer knew all of the facts relevant to the “whistleblower” claim when the complaint was filed on January 23, 1989, he did not move to amend until three years later. The existence of undue delay supports denial of a motion for leave to amend. See Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir.1991) (denying leave to amend after two year delay); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). Moreover, permitting the amendment would have required Hughes to address new legal theories and would have required extensive additional discovery, all of which would have been prejudicial. See Texaco, 939 F.2d at 798-99. Finally, Schumer had already amended the complaint once before this motion was filed. See Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir.1980) (holding that the district court’s discretion is especially broad when the court has previously given the plaintiff an opportunity to amend). Thus, although we are aware that “Rule 15’s policy of favoring amendments to pleadings should be applied with ‘extreme liberality’,” United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981), we cannot conclude under the circumstances present here that the district court abused its discretion in denying Schumer’s motion for leave to amend. VII. Jury Trial Finally, Schumer claims that the district court improperly found that he had waived" }, { "docid": "16101733", "title": "", "text": "after more than three years of litigation. See Faman III, 656 F.Supp.2d at 1199 (discussing D’Aguanno v. Gallagher, 50 F.3d 877, 881 (11th Cir.1995)). In evaluating whether Farnan was prejudiced, we note that he was put on notice that qualified immunity was at issue when the intervenors raised the defense on Corbett’s behalf in their answer, long before the parties filed their motions for summary judgment. In addition, a plaintiff does not establish prejudice even when the timely assertion of an affirmative defense would have been dispositive had it been asserted at the outset of the suit. See Owens, 244 F.3d at 713. In any event, the district court noted that “Corbett would very likely not have succeeded on a qualified immunity defense early on,” so even if he had raised the defense in his motion for summary judgment, “the Court would have nevertheless considered the issue of whether a constitutional violation occurred.” Farnan III, 656 F.Supp.2d at 1199. We therefore conclude that the district court did not abuse its discretion under Rule 16 by permitting the amendment to the scheduling order. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.2000); Johnson, 975 F.2d at 607-08. The district court also did not abuse its discretion under Rule 15 by allowing Corbett to amend his answer. Rule 15(a) provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). “This policy is ‘to be applied with extreme liberality.’ ” Eminence Capital, EEC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.2003) (quoting Owens, 244 F.3d at 712). “Absent prejudice, or a strong showing of any of the remaining Foman [v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id,. Corbett had not previously amended his answer and the amendment was not futile. Further, as we have explained, there was no undue delay, bad faith, dilatory motive or undue prejudice to Farnan. See Waldrip v. Hall, 548 F.3d 729, 732-33 (9th Cir.2008); Owens, 244 F.3d" }, { "docid": "22332666", "title": "", "text": "judgments by Aspeon, and the allegedly suspicious relationship between Aspeon and its accountants, PriceWater-houseCoopers. On September 14, 2001, the district court granted Aspeon’s motion to dismiss the first amended consolidated complaint for failure to state a claim, with prejudice. While acknowledging that the complaint in some respects came close to satisfying the heightened pleading standards for securities fraud cases, the district court nevertheless found that Eminence had failed to plead “false statements” with particularity under § 10(b), and that it had failed to satisfy the scienter requirement of its § 10(b) claim, pursuant to the standards set forth in the Private Securities Litigation Reform Act of 1995 and in In re Silicon Graphics Sec. Litig., 183 F.3d 970 (9th Cir.1999). Finally, stating that Eminence had had “three bites at the apple,” the district court dismissed the complaint with prejudice. Eminence appeals. II. DISCUSSION Eminence contends that the district court abused its discretion in dismissing the first amended consolidated complaint with prejudice and thereby denying leave to amend. We agree, and reverse the judgment of the district court. After a party has amended a pleading once as a matter of course, it may only amend further after obtaining leave of the court, or by consent of the adverse party. Fed.R.Civ.P. 15(a). Generally, Rule 15 advises the court that “leave shall be freely given when justice so requires.” This policy is “to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001)(quoting Moronga Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court offered the following factors a district court should consider in deciding whether to grant leave to amend: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the .leave sought" }, { "docid": "12388276", "title": "", "text": "his other claims with prejudice. While Sharkey does not contest the statute of limitations applicable to these claims, he seeks leave to amend his complaint to allege additional facts defeating the statute-of-limitations defense. We review the denial of an opportunity to amend for abuse of discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Sharkey missed the deadline to amend his pleadings as a matter of course, as he was required to do so within twenty-one days of being served with a motion to dismiss. See Fed.R.Civ.P. 15(a)(1)(B). However, “Rule 15(a) declares that leave to amend shall be freely given when justice so requires; this mandate is to be heeded.” Woman, 371 U.S. at 182, 83 S.Ct. 227 (internal quotation marks omitted). Moreover, “[w]e are very cautious in approving a district court’s decision to deny pro se litigants leave to amend.” Flowers v. Wirst Hawaiian Bank, 295 F.3d 966, 976 (9th Cir.2002); see also Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248-49 (9th Cir.1995) (per curiam). The Supreme Court in Foman v. Davis held that district courts should consider the following factors in deciding whether to dismiss with prejudice: In the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. the leave sought should, as the rules require, be ‘freely given.’ 371 U.S. at 182, 83 S.Ct. 227. “Absent prejudice, or a strong showing of any of the remaining Woman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003). In the instant case, the district court provided no explanation for dismissing with prejudice, despite the fact that the operative complaint was the first and only complaint filed by Sharkey, who was proceeding pro" }, { "docid": "2438269", "title": "", "text": "of the adverse party; and leave shall be freely given when justice so requires.” The Ninth Circuit has instructed that the policy favoring amendments “is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (citations omitted). But amendments “seeking to add claims are to be granted more freely than amendments adding parties.” Union Pac. R.R. Co. v. Nevada Power Co., 950 F.2d 1429, 1432. The four factors commonly used to determine the propriety of a motion for leave to amend are bad faith, undue delay, prejudice to the opposing party, and futility of amendment. Foman v. Davis, 371 U.S. 178,182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); DCD Programs, 833 F.2d at 186. An amendment may relate back to the time of the filing of the original complaint under the standards set out in Federal Rule of Civil Procedure 15(e). IV. DISCUSSION The Court applies a policy of “extreme liberality” in favor of Rule 15 amendments and determines the propriety of Plaintiffs motion under the four commonly used conditions to grant leave to amend. In addition, the Court follows Rule 15(c) “relation back” requirement with respect to amendments that are filed after the running of the statute of limitations. A. Plaintiff’s Amendment Is Not In Bad Faith. Leave to amend may be denied if the amendment is introduced solely for delay or improper purpose. Foman, 371 U.S. at 182, 83 S.Ct. 227. Here, Plaintiffs amendment is introduced to add the true owner of the underlying debt, Outsource. Plaintiff claims that Defendant JBC was acting as both the agent and client of Outsource. (Motion at 3.) Outsource is clearly a relevant party to the litigation, since any litigation outcome would affect its ownership interests over the alleged underlying debt. Plaintiff did not appear to know of Outsource until March of 2005 (Opp’n at 9), leaving unreasonable the assumption that Plaintiff acted with a dilatory motive. See DCD Programs, 833 F.2d at 187 (finding no bad faith when satisfactory explanation for" }, { "docid": "22332667", "title": "", "text": "district court. After a party has amended a pleading once as a matter of course, it may only amend further after obtaining leave of the court, or by consent of the adverse party. Fed.R.Civ.P. 15(a). Generally, Rule 15 advises the court that “leave shall be freely given when justice so requires.” This policy is “to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001)(quoting Moronga Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court offered the following factors a district court should consider in deciding whether to grant leave to amend: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the .leave sought should, as the rules require, be “freely given.” Id. at 182, 83 S.Ct. 227. See also Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.1990)(eiting Foman factors, as well as “previous amendment”); Hurn v. Ret. Fund Trust of the Plumbing, Heating & Piping Indus. of S. Cal., 648 F.2d 1252, 1254 (9th Cir.1981). Not all of the factors merit equal weight. As this circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.1987). Prejudice is the “touchstone of the inquiry under rule 15(a).” Lone Star Ladies Inv. Club v. Schlotzsky’s Inc., 238 F.3d 363, 368 (5th Cir.2001); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir.1973)(stating that “the crucial factor is the resulting prejudice to the opposing party”); cf. DCD Programs, 833 F.2d at 186-87 (noting that party opposing amendment “bears the burden of showing prejudice”). Absent prejudice, or a strong showing of any of the remaining Foman factors," }, { "docid": "12388277", "title": "", "text": "Dep’t of Corr., 66 F.3d 245, 248-49 (9th Cir.1995) (per curiam). The Supreme Court in Foman v. Davis held that district courts should consider the following factors in deciding whether to dismiss with prejudice: In the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. the leave sought should, as the rules require, be ‘freely given.’ 371 U.S. at 182, 83 S.Ct. 227. “Absent prejudice, or a strong showing of any of the remaining Woman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003). In the instant case, the district court provided no explanation for dismissing with prejudice, despite the fact that the operative complaint was the first and only complaint filed by Sharkey, who was proceeding pro se. '“A simple denial of leave to amend without any explanation by the district court is subject to reversal.” Id. “Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman, 371 U.S. at 182, 83 S.Ct. 227. Similarly, dismissal with prejudice constitutes an abuse of discretion where the district court fails to make a determination “that the pleading could, not possibly be cured by the allegation of other facts,” Lopez, 203 F.3d at 1127 (emphasis added) (internal quotation marks omitted), and this is so “ ‘even if no request to amend the pleading was made.’ ” Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995) (quoting Cook, Perkiss & Liehe v. N. Cal. Collection Service, 911 F.2d 242, 247 (9th Cir.1990)). We therefore conclude that the district" }, { "docid": "11239196", "title": "", "text": "valid contract. McBride v. Boughton, 123 Cal.App.4th 379, 388, 20 Cal.Rptr.3d 115 (2004). The Complaint alleges a claim for unjust enrichment, and seeks to recover on grounds that as a result of Qualcomm’s anticompetitive conduct, Qualcomm has “benefitted and has been unjustly enriched” at the expense of consumers. Complaint, ¶¶ 108-111. However, a cause of action for unjust enrichment is not cognizable under California law. See Melchior, 106 Cal.App.4th at 794, 131 Cal.Rptr.2d 347. Furthermore, the Complaint does not allege any contractual or quasi-contractual relationship between Plaintiff and Qualcomm. The Court concludes that Plaintiff may not maintain a claim based on unjust enrichment. The sixth claim for unjust enrichment is dismissed. VI. Leave to Amend Plaintiff requests leave to amend “[s]hould the Court grant Defendant’s motion in whole or in part.” Opposition, p. 21. Plaintiff contends that Qualcomm has not shown that amendment is futile. Qual-comm opposes leave to amend, stating that “[although Plaintiffs Opposition includes a boilerplate request for leave to amend, any leave would be improper under these circumstances, as the brief fails to identify anything Plaintiff could plausibly allege that would remedy the defects in the Complaint.” Reply, p. 10. Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend “be freely given when justice so requires.” Fed.R.Civ.P. 15(a). This policy is applied with “extraordinary liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). Once an answer to the complaint has been filed, as is the case here, courts may deny leave to amend where the proposed amendment would be futile, where it is sought in bad faith, where it will create undue delay, or where “undue prejudice to the opposing party will result.” Howey v. United States, 481 F.2d 1187, 1190 (9th Cir.1973); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992). Qualcomm does not assert that amendment is sought in bad faith, will create undue delay, or would prejudice Qual-comm. The Court grants Plaintiff leave to amend. Conclusion IT IS HEREBY ORDERED that the Motion to Dismiss (Doc. # 15) is GRANT" }, { "docid": "22160546", "title": "", "text": "Sunrise Hospital discount in the notice of coinsurance obligations sent to them induced them to make inflated co-payments. The Co-Payors were thus allegedly injured by the defendants’ fraudulent failure to reduce their co-payment bills in accordance with the agreed ratio of 80% to 20%. Although these facts presented at least a triable issue of fact on the Co-Payors’ RICO claim, the district court dismissed the claim as barred by the MeCarran-Ferguson Act. As we have previously stated, the MeCarran-Ferguson Act does not preclude a RICO claim in this case. The district court correctly held, however, that the Co-Payors failed to present any evidence of financial harm resulting from the misrepresentations, except for the amounts they overpaid as a result of the nondisclosure of the discount. Therefore, we affirm the district court’s partial summary judgment in favor of the defendants as to any claim by the plaintiffs for RICO damages in excess of these overpayments. E. Motion To Amend The plaintiffs contend the district court erred in not granting them leave to amend their complaint. The plaintiffs sought leave to add three additional claims: (1) a RICO conspiracy claim; (2) a claim for obstruction of justice under 18 U.S.C. § 1503; and (3) their previously dismissed state law claims. We review for abuse of discretion a district court’s denial of a motion to amend. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). Leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). We apply this rule with “extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). The following factors guide a court’s determination of whether a motion to amend should be granted: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Hurn v. Retirement Fund Trust of Plumbing, Etc., 648 F.2d 1252, 1254 (9th Cir.1981). Of these elements, only the futility issue is relevant in this case. Because the plaintiffs’ state law claims are preempted by ERISA, leave to amend to reassert the state law claims would be futile. The" }, { "docid": "22160547", "title": "", "text": "plaintiffs sought leave to add three additional claims: (1) a RICO conspiracy claim; (2) a claim for obstruction of justice under 18 U.S.C. § 1503; and (3) their previously dismissed state law claims. We review for abuse of discretion a district court’s denial of a motion to amend. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). Leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). We apply this rule with “extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). The following factors guide a court’s determination of whether a motion to amend should be granted: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Hurn v. Retirement Fund Trust of Plumbing, Etc., 648 F.2d 1252, 1254 (9th Cir.1981). Of these elements, only the futility issue is relevant in this case. Because the plaintiffs’ state law claims are preempted by ERISA, leave to amend to reassert the state law claims would be futile. The obstruction of justice claim under 18 U.S.C. § 1503 is also futile because 18 U.S.C. § 1503 is a criminal statute that does not provide for a private cause of action. Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir.1960), cert. denied, 365 U.S. 838, 81 S.Ct. 751, 5 L.Ed.2d 747 (1961); Odell v. Humble Oil & Refining Co., 201 F.2d 128, 127 (10th Cir.), cert. denied, 345 U.S. 941, 73 S.Ct. 833, 97 L.Ed. 1367 (1953). With regard to the proffered RICO conspiracy claim, however, in light of our determination that the Co-Payor class’s RICO claim is not barred by the MFA, we conclude the Co-Payor class should be allowed to amend its complaint to assert this claim. V CONCLUSION The district court’s grant of summary judgment is affirmed as to the ERISA issues, reversed and remanded as to the Sherman Act antitrust issues, affirmed as to the Premium Payor class’s RICO claim, and affirmed as to partial summary judgment on the Co-Payor class’s RICO claim. In addition, we grant the Co-Payor" }, { "docid": "22170745", "title": "", "text": "v. City of Seattle, 409 F.3d 1113, 1130 (9th Cir.2005) (holding that security zone exceptions permitting shoppers and employees, but not protestors, to enter a restricted area did not amount to discrimination on the basis of viewpoint because the two groups were not similarly situated). We conclude that Plaintiffs’ complaint fails to plead facts plausibly suggesting a colorable Bivens claim against the Agents. The facts do not rule out the possibility of viewpoint discrimination, and thus at some level they are consistent with a viable First Amendment claim, but mere possibil ity is not enough. The factual content contained within the complaint does not allow us to reasonably infer that the Agents ordered the relocation of Plaintiffs’ demonstration because of its anti-Bush message, and it therefore fails to satisfy Twombly and Iqbal. C. Leave to Amend Plaintiffs contend that, if the Supreme Court’s intervening decisions altered pleading standards in a meaningful way, and their complaint is found deficient under those standards, they should be granted leave to amend. Courts are free to grant a party leave to amend whenever “justice so requires,” Fed.R.Civ.P. 15(a)(2), and requests for leave should be granted with “extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). “‘Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.’ ” Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002) (quoting Polish v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir.1991)). We agree with Plaintiffs that they should be granted leave to amend. Prior to Twombly, a complaint would not be found deficient if it alleged a set of facts consistent with a claim entitling the plaintiff to relief. See Conley, 355 U.S. at 45-46, 78 S.Ct. 99. Under the Court’s latest pleadings cases, however, the facts alleged in a complaint must state a claim that is plausible on its face. As many have noted, this is a significant change, with broad-reaching" } ]

[ { "docid": "7916076", "title": "", "text": "ALLEN, Circuit Judge. Appellant, as receiver of a national bank and holder of a mortgage on real estate, executed by appellee on May 2, 1931, brought suit for foreclosure. The defense was that the interest charged was usurious, that the entire interest was therefore forfeited, and that appellee, prior to the institution of -the suit, had tendered the full amount due. The mortgage and note were in the face amount of $3,500.00 with interest at seven per cent. At the time the loan was made the mortgagor was required by the bank to pay $17.50 mortgage tax, $6.50 for certificate of abstract, $1.50 for recording the mortgage, and $5.00 for attorney’s fee, or a total of $30.50. Appellee paid the mortgagee $1,169.98, which was applied both to principal and interest. On January 22, 1936, appellee tendered $2,330.12, asserting that this was in excess of the amount due. Appellant claims that the correct balance is $2,975.00. The District Court found that $2,299.52 was due, and inasmuch as the tender exceeded this amount, decreed that no costs should be awarded to the bank. The controlling question is whether a claim for interest paid under a usurious loan made by a national bank can be recovered or set off in a foreclosure suit. . Under § 85, Title 12, U.S.C., 12 U.S.C.A. § 85, national banks may charge interest at the rate allowed by the laws of the state. The maximum lawful rate of interest in Michigan is seven per cent, per annum (Comp.Laws of Michigan 1929, § 9239). The question whether the rate of interest is usurious is decided according to the law of the state in which the loan is made. Evans v. National Bank of Savannah, 251 U.S. 108, 40 S.Ct. 58, 64 L.Ed. 171. Appellant concedes that under the Michigan decisions, the loan was usurious. Any charge against the mortgagor in addition to the maximum allowable rate of interest constitutes usury, where the charge is to be borne by the mortgagee, such as a tax on the mortgagee’s interest (Comp.Laws Mich. 1929, § 3647), or recording fees. Union Guardian" } ]

[ { "docid": "5652298", "title": "", "text": "was: . [T]he district in which the national bank has its principal place of business and which contains the place recited in its charter . should be taken as the proper district for suits against a national bank. 81 F.2d at 22. . In Mercantile National Bank v. Langdeau, 371 U.S. 555, 561, 83 S.Ct. 520, 523, 9 L.Ed.2d 523 (1963), the Court said: “All of the cases in this Court which have touched upon the issue here are in accord with our conclusion that national banks may be sued only in those state courts in the county where the banks are located.” . The Iowa district court in its transfer order of February 14, 1974 voiced a similar conclusion when it said that “the usury or fundamental count must be tried in the Northern District of Illinois and public policy would be strengthened by ordering this case to be tried there in its entirety.” . The ruling of the Comptroller of the Currency provides that: “(a) A national bank may charge interest at the maximum rate permitted by State law to any competing State chartered or licensed lending institution. If State law permits a higher interest rate on a specified class of loans, a national bank making such loans at such higher rate is subject to the provisions of State law relating to such class loans that are material to the determination of the interest rate. For example, a national bank may lawfully charge the highest rate permitted to be charged by a State-licensed small loan company or morris plan bank, without being so licensed.” 12 C.F.R. § 7.7310. . Section 85 in its entirety reads: Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal" }, { "docid": "885170", "title": "", "text": "of state law relating to such class of loans that are material to the determination of the interest rate. For example, a national bank may lawfully charge the highest rate permitted to be charged by a state-licensed small loan company or morris plan- bank, without being so licensed.” The above interpretations, made'by an office charged with the responsibility of promulgating reasonable regulations pursuant to the National Banking Act, and supported by the legislative history of the Act and by the Supreme Court’s decision in Tiffany, supra, are entitled to deference by this Court. See, Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153, 154, 67 S.Ct. 245, 91 L.Ed. 136; F.H.A. v. The Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 3 L.Ed.2d 132; Udall v. Tallman, 380 U.S. 1, 17, 85 S.Ct. 792, 13 L.Ed.2d 616. The fact that savings and loan associations may be organized and operated in a manner different from banks generally does not, contrary to appellant’s suggestions, alter the fact that such associations should be treated as “competing state-chartered or licensed lending institution[s],” within the meaning of Ruling 7.7310, supra. The conclusion is inescapable that the National Bank Act accorded national banks the right to charge the interest rate afforded their state competitors whether the competitor was a state bank or other non-bank lender. See, Tiffany v. National Bank of Missouri, supra. Accordingly, appellants’ second contention is without merit. IV Appellants argue finally that the assessment by the appellee bank of $30,000.00 in prepayment penalties constituted usury, because taken on an otherwise usurious loan. Appellants concede that prepayment penalties are not generally considered interest and that when charged in addition to maximum interest do not make an otherwise non-usurious loan usurious. See, 75 A.L.R.2d 1265, 130 A.L.R. 73, citing cases. Since the Court has concluded that the loans herein were not usurious, this question need not be considered. For the reasons above stated, the judgment of the District Court is hereby affirmed. . Sections 85 and 86 of the National Banking Act, 12 U.S.C., §§ 85 and 86, provide as follows: 85. Rate of" }, { "docid": "1655178", "title": "", "text": "and Fernández. (2) The Usury Claims Plaintiffs also aver generally that Chase exacted usurious interest from Nesglo on the loan transactions in violation of 12 U.S.C. Sections 85 and 86, which regulate the maximum interest charges that national banking associations may charge, take or receive. Section 85 provides in pertinent part: “Any association may take, receive, reserve, and charge on any loan and discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve Bank in the Federal Reserve District where the bank is located or in the case of business or agricultural loans in the amount of $25,000 or more at a rate of 5 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve Bank in the Federal Reserve District where the bank is located, whichever may be the greater, and no more, except that whereby the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter.” (Emphasis supplied). Section 86 in turn prescribes that the “taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section (85), when knowingly done, shall be deemed a forfeiture of the entire interest ...” It also states that should the greater rate of interest have been paid, the person thus paying may recover twice the amount of interest then paid in an action of debt provided such action is commenced within two years from the time the usurious transaction occurred. The same way that plaintiffs’ Complaint is deficient in pleading the requisite facts for this Court to have jurisdiction under 12 U.S.C. Section 1975, said Complaint is also fatally defective to invoke 12 U.S.C. Sections 85 and" }, { "docid": "5652299", "title": "", "text": "maximum rate permitted by State law to any competing State chartered or licensed lending institution. If State law permits a higher interest rate on a specified class of loans, a national bank making such loans at such higher rate is subject to the provisions of State law relating to such class loans that are material to the determination of the interest rate. For example, a national bank may lawfully charge the highest rate permitted to be charged by a State-licensed small loan company or morris plan bank, without being so licensed.” 12 C.F.R. § 7.7310. . Section 85 in its entirety reads: Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the bank is located, or in the case of business or agricultural loans in the amount of $25,000 or more, at a rate of 5 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter. When no rate is fixed by the laws of the State, or Territory, or District, the bank may take, receive, reserve, or charge a rate not exceeding 7 per centum, or 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the bank is located, or in the case of business or agricultural loans in" }, { "docid": "15742040", "title": "", "text": "of already existing paper. Nor is this case similar to the Fenwick Sanitarium case, heavily relied upon by the plaintiff, where all the parties involved and present treated the transaction as a sale rather than a loan. 2. Was the note usurious? At the outset we are confronted with the question of whether state or federal law governs this question. The plaintiff, a national bank, is subject to the provisions of the National Banking Act, 12 U.S.C. § 21 et seq. Section 85 of Title 12 of the United States Code establishes the rates of interest which national banks may charge. It provides in pertinent part: “Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District Where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter. When no rate is fixed by the laws of the State, or Territory, or District, the bank may take, receive, reserve, or charge a rate not exceeding 7 per centum, or 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and such interest may be taken in advance, reckoning the days for which the note, bill, or other evidence of debt has to run.” The plaintiff bank is located in the State of New York. Thus, if § 85 is applicable to this case, we must refer to New York law" }, { "docid": "885168", "title": "", "text": "regard, the Court notes that although the loan in the instant case was separated into two parts, both were in fact commercial real estate loans within the meaning of Michigan law. Similarly, the expenses charged in this ease to the borrower, including the cost of obtaining title insurance, land survey, mortgage recording, financing search and reasonable attorney’s fees, were never allocated as between the so-called “industrial” loan and the real estate mortgage loan and in fact constitute the ordinary charges which are made in connection with commercial real estate mortgage loans. Had not the appellee bank styled part of its loan as an “industrial” loan, the conflict between the restrictive closing costs provisions of M.S.A. § 23.766(b), M.C.L.A. § 487.-38(b), supra, n. 2, and the provisions of the Savings & Loan Associations Act, M.S.A. § 23.540(379), M.C.L.A. § 489.-779, would not have arisen. In this Court’s view, given the nature of the expenses charged, the former statute cannot be considered controlling. In interpreting the meaning and intent of 12 U.S.C. § 85, the District Court below concluded that: “Since a savings and loan association can in fact charge 7% interest and in addition thereto * * * require a borrower to pay all reasonable and necessary charges incurred in connection with the making, closing and disbursing of real estate loans, it is the opinion of the court that a national banking association operating within the State of Michigan may do so also. To construe the Act otherwise would place a national bank in a competitively inferior position not contemplated by the federal statute.” The District Court’s ruling is supported by the administrative interpretations of Comptrollers of the Currency over many years. We note in passing Ruling 7.-7310, 12 C.F.R. § 7.7310, 36 F.R. 17015, which provides as follows: “A national bank may charge interest at the maximum rate permitted by state law to any competing state-chartered or licensed lending institution. If state law permits a higher interest rate on a specified class of loans, a national bank making such loans at such higher rate is subject only to the provisions" }, { "docid": "20361003", "title": "", "text": "court noted “[t]he fact that the unlawful practices alleged in the instant case involve a scheme for passing on the cost of insurance premiums does not covert this ease into one limited to the insurance industry.” Id. at 591. Therefore, because the Bank was not engaged in the practice of insurance, it is not protected from this RICO action by the MeCarran-Ferguson exemption. IV. The National Bank Act The plaintiffs also contend that they have been charged excessive interest by the Bank on the premiums that were added to their automobile loans. The Bank is a nationally chartered bank and therefore governed by the National Bank Act. 12 U.S.C. § 38 et al. (1988). The National Bank Act and its accompanying regulations allow nationally chartered banks to charge up to the maximum permitted to the most-favored state-chartered banks in the state in which they are operating. The National Bank Act provides in relevant part: Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State ... where the bank is located.... 12 U.S.C. § 85. This statute has been interpreted by the Supreme Court, under the Most Favored Lender Doctrine, to allow banks to charge the rate allowed to the “most favored lenders” under state law. Marquette Nat’l Bank v. First of Omaha Serv. Corp., 439 U.S. 299, 314 n. 26, 99 S.Ct. 540, 548 n. 26, 58 L.Ed.2d 534 (1978) (citing 12 C.F.R. § 7.7310). Consequently, the maximum interest rate allowed to banks under Ohio law determines whether the Bank in this case has charged excessive interest. The Ohio Revised Code allows “building and loan” banks as well as savings banks to charge unlimited dues, fines, interest and premiums on “loans made.” Ohio Rev.Code Ann. §§ 1151.21, 1161.28 (Baldwin 1994). The defendants argue convincingly that when the Bank acted pursuant to the Notice to Provide Insurance signed by the plaintiffs and added the premiums to the outstanding balances on the plaintiffs’ automobile loans," }, { "docid": "885171", "title": "", "text": "or licensed lending institution[s],” within the meaning of Ruling 7.7310, supra. The conclusion is inescapable that the National Bank Act accorded national banks the right to charge the interest rate afforded their state competitors whether the competitor was a state bank or other non-bank lender. See, Tiffany v. National Bank of Missouri, supra. Accordingly, appellants’ second contention is without merit. IV Appellants argue finally that the assessment by the appellee bank of $30,000.00 in prepayment penalties constituted usury, because taken on an otherwise usurious loan. Appellants concede that prepayment penalties are not generally considered interest and that when charged in addition to maximum interest do not make an otherwise non-usurious loan usurious. See, 75 A.L.R.2d 1265, 130 A.L.R. 73, citing cases. Since the Court has concluded that the loans herein were not usurious, this question need not be considered. For the reasons above stated, the judgment of the District Court is hereby affirmed. . Sections 85 and 86 of the National Banking Act, 12 U.S.C., §§ 85 and 86, provide as follows: 85. Rate of Interest on loans, diseotmts and purchases. — Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this title. When no rate is fixed by the laws of the State, or Territory, or District, the bank may take, receive, reserve, or charge a rate not exceeding 7 per centum, or 1 per centum in excess of the discount rate on" }, { "docid": "885169", "title": "", "text": "below concluded that: “Since a savings and loan association can in fact charge 7% interest and in addition thereto * * * require a borrower to pay all reasonable and necessary charges incurred in connection with the making, closing and disbursing of real estate loans, it is the opinion of the court that a national banking association operating within the State of Michigan may do so also. To construe the Act otherwise would place a national bank in a competitively inferior position not contemplated by the federal statute.” The District Court’s ruling is supported by the administrative interpretations of Comptrollers of the Currency over many years. We note in passing Ruling 7.-7310, 12 C.F.R. § 7.7310, 36 F.R. 17015, which provides as follows: “A national bank may charge interest at the maximum rate permitted by state law to any competing state-chartered or licensed lending institution. If state law permits a higher interest rate on a specified class of loans, a national bank making such loans at such higher rate is subject only to the provisions of state law relating to such class of loans that are material to the determination of the interest rate. For example, a national bank may lawfully charge the highest rate permitted to be charged by a state-licensed small loan company or morris plan- bank, without being so licensed.” The above interpretations, made'by an office charged with the responsibility of promulgating reasonable regulations pursuant to the National Banking Act, and supported by the legislative history of the Act and by the Supreme Court’s decision in Tiffany, supra, are entitled to deference by this Court. See, Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153, 154, 67 S.Ct. 245, 91 L.Ed. 136; F.H.A. v. The Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 3 L.Ed.2d 132; Udall v. Tallman, 380 U.S. 1, 17, 85 S.Ct. 792, 13 L.Ed.2d 616. The fact that savings and loan associations may be organized and operated in a manner different from banks generally does not, contrary to appellant’s suggestions, alter the fact that such associations should be treated as “competing state-chartered" }, { "docid": "11120612", "title": "", "text": "loan companies were not banks and even though the loans made by them did not involve the use of credit cards. Appeal in Danforth was not prosecuted to decision on the merits. 12 U.S.C. § 85 was designed by Congress to place national banks on a plane of at least competitive equality with other lenders in the respective states, and, indeed, to give to national banks a possible advantage over state banks in the field of interest rates. Thus, a national bank is not limited to the interest rate that a state bank may charge with respect to a particular type of loan if another lender in the state is permitted to charge a higher rate of interest on the same type of loan. In that situation the national bank may charge the higher rate. This “most favored lender” doctrine was recognized by the Supreme Court in Tiffany v. National Bank of Missouri, 18 Wall. (85 U.S.) 409, 21 L.Ed. 862 (1873), and it was discussed and applied by this court in First Nat’l Bank in Mena v. Nowlin, 509 F.2d 872 (8th Cir. 1975). The doctrine was also applied in Fisher v. First Nat’l Bank of Chicago, supra, and in Northway Lanes v. Hackley Union Bank & Trust Co., supra. As pointed out in Northway Lanes, supra, 464 F.2d at 864, the Comptroller of the Currency has considered for many years that § 85 incorporates the “most favored lender” doctrine, and that national banks may charge the maximum rate permitted by state law to any competing state char tered or licensed lending institution, including institutions licensed by state law to make “small loans.” In that connection 12 C.F.R. § 7.7310 provides: (a) A national bank may charge interest at the maximum rate permitted by State law to any competing State-chartered or licensed lending institution. If State law permits a higher interest rate on a specified class of loans, a national bank making such loans at such higher rate is subject only to the provisions of State law relating to such class of loans that are material to the determination" }, { "docid": "17257172", "title": "", "text": "national banks is fixed by 12 U.S.C.A. § 85, reading in pertinent part: “Any association may charge on any loan . . . interest at the rate allowed by the laws of the State . . . where' the bank is located . . . and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed it The next Code section, 12 U.S.C.A. § 86, provides in pertinent part: “The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest .... In case the greater rate of interest has been paid, the person by whom it has been paid, may recover back, twice the amount of the interest thus paid . . . . ” Thus the rate to be charged by national banks is permitted by federal law to be determined by the laws of the State in which the national bank is located. This interplay between the federal statute and State usury laws is elucidated by Evans v. National Bank, 251 U.S. 108, 40 S.Ct. 58, 64 L.Ed. 171 (1919): “The National Bank Act establishes a system of general regulations. It adopts usury laws of the states only insofar as they severally fix the rate of interest”; by National Bank v. Johnson, 104 U.S. 271, 26 L.Ed. 742 (1881): “The sole particular in which national banks are placed on an equality with natural persons is as to the rate of interest, and not as to the character of contracts they are authorized to make . . . . ”, and by Farmers’ & Mechanics’ Nat. Bank v. Dearing, 91 U.S. 29, 23 L.Ed. 196 (1875): “[T]he States can exercise no control over them [national banks], nor in anywise affect their operation, except in so far as Congress may see proper to permit.” Obviously, national bank loans are not required in all their characteristics to fit snugly into the mold used" }, { "docid": "17257171", "title": "", "text": "regard to the amount in controversy, in many of the areas which otherwise would fall under the general federal question statute 28 U.S.C.A. § 1331. Wright, Law of Federal Courts 108 (1970). Even more in point factually is Cupo v. Community National Bank & Trust Co. of N. Y., 438 F.2d 108 (2d Cir. 1971) holding that the National Bank Act is an act regulating commerce for purposes of § 1337. Plaintiff Cupo sued under 12 U.S.C.A. § 61 giving a shareholder the right of cumulative voting; these three plaintiffs sue under 12 U.S.C.A. § 86 giving the right to recover usurious interest paid. Cupo convincingly disposes of contentions there made that Murphy followed by Cupo, was at variance with the Congressional policy behind the enactment of 28 U.S.C.A. §§ 1348 and 1349. As above stated, we hold that the trial court had jurisdiction under 28 U.S.C.A. § 1337, and it is not necessary for us to decide whether it also had jurisdiction under 28 U.S.C.A. § 1335. MERITS The amount of interest permissible to national banks is fixed by 12 U.S.C.A. § 85, reading in pertinent part: “Any association may charge on any loan . . . interest at the rate allowed by the laws of the State . . . where' the bank is located . . . and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed it The next Code section, 12 U.S.C.A. § 86, provides in pertinent part: “The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest .... In case the greater rate of interest has been paid, the person by whom it has been paid, may recover back, twice the amount of the interest thus paid . . . . ” Thus the rate to be charged by national banks is permitted by federal law to be determined by the laws of the" }, { "docid": "5652285", "title": "", "text": "in Iowa with the help of Iowa correspondent state banks; and that state banks in Iowa are limited to charging 12% per annum. The district court stated in its memorandum opinion: Although Section 85 is silent as to the permissible rate of interest on loans made to borrowers situated in states other than where the national bank is located, this Court feels that under such situations the permissible rate would be defined by the laws of the state in which the borrower is situated. However, a national bank making such a loan would retain its “most favored lender” status within the parameters of that state’s laws. [A ruling of the Comptroller of the Currency] indicates that defendant is allowed to avail itself of the provisions of the Iowa Small Loans Act even if it does not comply with any of the provisions of that act other than the provisions relating to the interest rate. Accordingly, it is the finding of this Court that the National Banking Act grants to the defendant a “most favored lender” status when it extends credit to borrowers in Iowa. Therefore, defendant could avail itself of the provisions of the Iowa Small Loans Act even though Iowa state banks could not. The logical extension of this finding is that defendant did not charge a usurious rate of interest on the loans it made to plaintiff. We agree with the district court’s conclusion dismissing the case for failure of the defendant bank to charge usurious interest, but not for entirely the same reasons. IV The facts of this case require us to interpret the following language of the statute determining the rate of interest chargeable by national banking associations, 12 U.S.C. § 85: Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, . . . and no more, except that where by the laws of any State a different rate is" }, { "docid": "5978883", "title": "", "text": "do take issue with the majority’s conclusion that section 926(d) provides a valid defense to a claim under 12 U.S.C. §§ 85 and 86 only when the lender and borrower have agreed upon the rate of interest to be charged. In my view, sections 85 and 86 have no application to a loan made pursuant to the Preferred Ship Mortgage Act, 46 U.S.C. § 911, et seq. 12 U.S.C. § 85 was enacted as part of the National Bank Act to place national banks on an equal competitive basis with state banks. Tiffany v. Bank of Missouri, 18 Wall. 409, 85 U.S. 409, 21 L.Ed. 862 (1874). It provides in pertinent part: “Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter...” 12 U.S.C. § 86 is the counterpart to section 85. It provides: “The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bills, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in .the nature of an action of debt, twice the amount of the interest thus paid from the association taking" }, { "docid": "5652293", "title": "", "text": "affirming the district court’s order of dismissal on the basis of the Iowa 18% rate for the reasons the district court gave: Although Section 85 is silent as to the permissible rate of interest on loans made to borrowers situated in states other than where the national bank is located, this court feels under such situations the permissible rate would be defined by the laws of the state in which the borrower is situated. The same view was also taken in Meadow Brook National Bank v. Recile, 302 F.Supp. 62, 73-74 (E.D.La.1969), where the court expressed it with some misgivings: In effect, 12 U.S.C. § 85 provides that a national bank may charge interest at the rate allowed by the laws of the state where the bank is located. The question is whether this was meant to fix the rate of interest on all loans made by the bank or merely those loans made in that state. Admittedly, the above quoted language would seem to include all loans made by the bank and not solely those made in the state where the bank is located. The court concluded however: We hold that 12 U.S.C. § 85 fixes the rate of interest chargeable by a national bank only as to loans made in the state where the bank is located; it does not fix the rate of interest which may be charged by a national bank which is located in one state and makes a loan in another. Id. at 75. We are not inclined to so twist the plain meaning of the statute. It clearly states that the interest on “any loan” is governed by the rate allowed by the state “where the bank is located,” which in this case is Illinois. After Tiffany was decided the exception was amended by Congress to apply it not only to associations “organized in any such State,” which would be redundant inasmuch as the first clause applies to the same state, that is, where the bank is located, but to apply the exception also to. associations “organized or existing in any such State.”" }, { "docid": "11120613", "title": "", "text": "in Mena v. Nowlin, 509 F.2d 872 (8th Cir. 1975). The doctrine was also applied in Fisher v. First Nat’l Bank of Chicago, supra, and in Northway Lanes v. Hackley Union Bank & Trust Co., supra. As pointed out in Northway Lanes, supra, 464 F.2d at 864, the Comptroller of the Currency has considered for many years that § 85 incorporates the “most favored lender” doctrine, and that national banks may charge the maximum rate permitted by state law to any competing state char tered or licensed lending institution, including institutions licensed by state law to make “small loans.” In that connection 12 C.F.R. § 7.7310 provides: (a) A national bank may charge interest at the maximum rate permitted by State law to any competing State-chartered or licensed lending institution. If State law permits a higher interest rate on a specified class of loans, a national bank making such loans at such higher rate is subject only to the provisions of State law relating to such class of loans that are material to the determination of the interest rate. For example, a national bank may lawfully charge the highest rate permitted to be charged by a State-licensed small loan company or morris plan bank, without being so licensed. (b) A national bank located in a State the law of which denies the defense of usury to a corporate borrower may charge a corporate borrower any rate of interest agreed upon by such borrower. It is quite true that lenders licensed in Nebraska under the provisions of R.S.Neb. §§ 45-114 et seq. are not engaged in competition with banks in the over-all business of banking and that the loans made by them do not involve credit card transactions. That, however, is not of controlling importance. While a licensed maker of small loans in Nebraska and a state or national bank in Nebraska are lenders of different types, and while small loans companies doubtless make loans that banks would not make, there is really no essential difference between the type of consumer loan that is made by a small loan company and" }, { "docid": "22187928", "title": "", "text": "charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, . . . and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter.” (Emphasis supplied.) Section 85 thus plainly provides that a national bank may charge interest “on any loan” at the rate allowed by the laws of the State in which the bank is “located.” The question before us is therefore narrowed to whether Omaha Bank and its BankAmericard program are “located” in Nebraska and for that reason entitled to charge its Minnesota customers the rate of interest authorized by Nebraska law. There is no question but that Omaha Bank itself, apart from its BankAmericard program, is located in Nebraska. Petitioners concede as much. See Brief for Petitioner in No. 77-1258, p. 3; Brief for Petitioner in No. 77-1265, pp. 3, 16, 33-34. The National Bank Act requires a national bank to state in its organization certificate “[t]he place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the particular county and city, town, or village.” Rev. Stat. § 5134, 12 U. S. C. § 22. The charter address of Omaha Bank is in Omaha, Douglas County, Neb. The bank operates no branch banks in Minnesota, cf. Seattle Trust & Savings Bank v. Bank of California, 492 F. 2d 48 (CA9 1974), nor apparently could it under federal law. See 12 U. S. C. § 36 (c). The State of Minnesota, however, contends that this con- elusion must be altered if Omaha Bank’s BankAmericard program is considered: “In the context of a national bank which systematically solicits Minnesota residents for credit cards to be used in transactions with Minnesota merchants the bank must be deemed to be located’ in" }, { "docid": "5652286", "title": "", "text": "status when it extends credit to borrowers in Iowa. Therefore, defendant could avail itself of the provisions of the Iowa Small Loans Act even though Iowa state banks could not. The logical extension of this finding is that defendant did not charge a usurious rate of interest on the loans it made to plaintiff. We agree with the district court’s conclusion dismissing the case for failure of the defendant bank to charge usurious interest, but not for entirely the same reasons. IV The facts of this case require us to interpret the following language of the statute determining the rate of interest chargeable by national banking associations, 12 U.S.C. § 85: Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, . . . and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter. (Emphasis added.) Our task is twofold: first, what rate of interest is authorized by the state “where the bank is located” and what state is that; and second, what effect does the exception have upon “associations organized or existing in any such State” and what state is that? From our prior discussion in Part II of 12 U.S.C. § 94, the national banking association venue provision, and the Radzanower case, there can certainly be no lingering doubt as to the meaning of “where the bank is located.” None of the cases indicate that Congress gave one meaning to “locate” in § 94 and another meaning to the same word in § 85. The defendant here is located, established and organized in only Chicago, Illinois, and is subject therefore to the rate of interest “allowed by the laws of the State” of Illinois. If we could stop there and only" }, { "docid": "1242014", "title": "", "text": "two years preceding the filing of plaintiff’s complaint, BankAmericard and Master Charge cards issued by defendants Pittsburgh National Bank, Mellon National Bank and Trust Company and Western Pennsylvania National Bank. . Defendants Mellon and WPNB issue Master Charge cards and defendant PNB issues BankAmericards. . Thus avoiding the trap of historical dogma embodied in the time-price doctrine which' held that interest charged for the sale of goods did not fall within the ambit of usury statutes. See Note, Interest Incognito: Usury Statute Applied To Revolving Charge Account, 34 U.Pitt.L.Rev. 56 (1972). . The question of whether the rate of interest charged by a national bank is usurious is decided according to the law of the state in which the transaction occurs. Schumacher v. Lawrence, 108 F.2d 576 (6th Cir. 1940). . Moreover, The Commerce Clause need not be the exclusive source of federal power as argued by defendants. “It suffices that it be a significant one.” Murphy v. Colonial, supra 388 F.2d at 615. See also Imm v. Union Railroad Co., 289 F.2d 858 (3d Cir. 1961). . Section 1348 provides as follows: “The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter. All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” . § 85. Rate of interest on loans, discounts and purchases “Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate. allowed by the laws of the State, Territory, or District where the bank is located, or" }, { "docid": "22187950", "title": "", "text": "maintained “within the corporate limits of the city in which such bank is located.” Neb. Rev. Stat. §§8-157 (1) and (2) (1977). Nebraska also permits banks to operate manned or unmanned “electronic satellite facilities.” §8-157 (3). There is no contention in this case that Omaha Bank operates such facilities in the State of Minnesota. Last Term Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35 (1977), held that, with respect to the venue provision of the National Bank Act, 12 U. S. C. § 94, supra, n. 11, a national bank is “located” either in the place designated in its “organization certificate,” 12 ü. S. C. § 22, supra, n. 2, or in the places in which it has established authorized branches. Omaha Bank is thus also “located” in Nebraska for purposes of 12 U. S. C. § 94. Although the Act of June 3, 1864, ch. 106, 13 Stat. 99, was originally entitled \"An Act to Provide a National Currency . . . ,” its title was altered by Congress in 1874 to \"the national-bank act.” Ch. 343, 18 Stat. 123. Section 30 was, in its pertinent parts, virtually identical with the current § 85. Section 30 stated: “[E]very association may take, reserve, receive, and charge on any loan, or discount made, or upon any note, bill of exchange, or other evidences of debt, interest at the rate allowed by the laws of the state or territory where the bank is located, and no more, except that where by the laws of any state a different rate is limited for banks of issue organized under state laws, the rate so limited shall be allowed for associations organized in any such state under this act.” Section 30 was preceded by § 46 of the National Currency Act of 1863, 12 Stat. 678, which provided: “[E]very association may take, reserve, receive, and charge on any loan, or discount made, or upon any note, bill of exchange, or other evidence of debt, such rate of interest or discount as is for the time the established rate of interest for delay" } ]

[ { "docid": "22658266", "title": "", "text": "has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that if indigent he has a right to a lawyer without charge. To forgo these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden. If before or during questioning the suspect seeks to invoke his right to remain silent, interrogation must be forgone or cease; a request for counsel brings about the same result until a lawyer is procured. Finally, there are a miscellany of minor directives, for example, the burden of proof of waiver is on the State, admissions and exculpatory statements are treated just like confessions, withdrawal of a waiver is always permitted, and so forth. While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward “volun-tariness” in a utopian sense, or to view it from a different angle, voluntariness with a vengeance. To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed" } ]

[ { "docid": "1704660", "title": "", "text": "Sixth Amendment right to cross-examination is absolute, and admission of the co-defendant’s statement therefore violated Bruton’s right to confront the evidence against him. There was no presumption of veracity in the statement because the credibility of such statements is “inevitably suspect.” 391 U.S. at 136, 88 S.Ct. 1620. In Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the Court again held a co-defendant’s confession not within a hearsay exception and inadmissible. There, Millie Lee’s co-defendant, Edwin Thomas, gave a statement inculpating both himself and Lee in a plot to kill Lee’s aunt. Notwithstanding that Thomas’ statement was voluntary and also incriminated himself, the Court held the statement unreliable and stated: Although ... the confession was found to be voluntary for Fifth Amendment purposes, such a finding does not bear on the question of whether the confession was also free from any desire, motive, or impulse Thomas may have had either to mitigate the appearance of his own culpability by spreading the blame or to overstate Lee’s involvement in retaliation for [Lee] having implicated him in the murders. Id. at 544, 106 S.Ct. 2056. Moreover, the Court in Lee recognized even then that its rule was not new law, stating that “there is no occasion to depart from the time-honored teaching that a co-defendant’s confession inculpating the accused is inherently unreliable, and that convictions supported by such evidence violate the constitutional right of confrontation.” Id. at 546, 106 S.Ct. 2056 (emphasis added). In Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), the defendant, Eulogio Cruz, sought to suppress his co-defendant’s confession under Bru-ton. However, Cruz had also made a confession which mirrored his co-defendant’s statement in all relevant aspects. The trial court admitted the co-defendant’s confession against Cruz, finding it reliable because of the two statements’ “interlocking” nature. Cruz, 481 U.S. at 189, 107 S.Ct. 1714. The Supreme Court reversed, and held that the existence of Cruz’s own corroborating confession did not automatically render the co-defendant’s statement reliable, and its admission constituted Sixth Amendment error. Id. at 193, 107 S.Ct." }, { "docid": "22424320", "title": "", "text": "properly considered under the United States Sentencing Commission Guidelines, § 3B1.1 Application Note 4. After careful review of the record we find the evidence amply supports these fact findings by the greater weight of the evidence. Accordingly, we find the sentencing court did not err in imposing the upward adjustment challenged by Delgado. In addition, Delgado argues that including suppressed evidence in the presentence investigation (“PSI”) report violated his constitutional rights. At trial, the district judge suppressed statements obtained in violation of both the Fifth and Sixth Amendments when Delgado was custodially interrogated after refusing to answer further questions without a lawyer. The prosecution, citing United States v. Lynch, 934 F.2d 1226 (11th Cir.), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 788 (1991), argues the sentencing judge may consider any reliable evidence, and that illegally seized evidence is reliable. Appellee’s Br. at 60-61. While Lynch does so hold, it applies specifically to the exclusionary rule for Fourth Amendment violations. Indeed, Lynch points out that coerced confessions and convictions obtained without affording the defendant the benefit of counsel have questionable reliability that historically has kept sentencing judges from considering such evidence. Id. at 1235. We find the government’s argument unpersuasive. Delgado cites Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), for the rule of law that suppressed evidence cannot be used at sentencing. We easily distinguish Estelle, however, and find it inap-posite to Delgado’s argument. Estelle involved a capital defendant who submitted to a psychiatric evaluation without a lawyer and without any knowing or voluntary waiver of his right to have a lawyer present, or to not incriminate himself. The prosecution called the examining psychiatrist at sentencing to testify that in his opinion Estelle was a future threat to society. This testimony was crucial because in Texas the sentencer must affirm that it considers the defendant a future threat to society before it may impose a death sentence. The Estelle Court found that use of the testimony violated Estelle’s Fifth and Sixth Amendment rights. As Estelle’s progeny shows, however, this holding applies specifically" }, { "docid": "18684486", "title": "", "text": "the main room shortly after the agents had entered, Major’s face was white and he looked “blank.” (Tr. 138.) Discussion A Major’s Statements It is well settled that a defendant’s confession may be used against him in a criminal proceeding only if that confession is made voluntarily. Green v. Scully, 850 F.2d 894, 900 (2d Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374,102 L.Ed.2d 363 (1988). When a confession is obtained by interrogation of a defendant who is in custody, the government must demonstrate that the defendant validly waived his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For statements to be admissible, the defendant must both voluntarily and knowingly waive his rights. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986); Miranda, at 444, 86 S.Ct. at 1612 (waiver must be made “voluntarily, knowingly and intelligently”). The standard of voluntariness for a Miranda waiver is the same as that for the voluntariness of a confession under the Fifth Amendment. Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986). The Constitution prohibits the use at trial of those confessions that are involuntary in the sense that they were obtained by government coercion. The requirement that coercion be established before a confession will be suppressed rests on the Fifth Amendment, which explicitly provides: “No person ... shall be compelled in any criminal case to be a witness against himself....” U.S. Const, amend. V. The Supreme Court has observed that “[t]he sole concern of the Fifth Amendment ... is governmental coercion.” Connelly, at 169-70, 107 S.Ct. at 523 (citations omitted). In United States v. Washing ton, in which the Supreme Court held that the testimony of a grand jury witness could be used in a later prosecution against him, the Court explained that “far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable_ [T]he Fifth Amendment proscribes only self-incrimination obtained by a ‘genuine compulsion of testimony.’ ” 431 U.S. 181, 187, 97" }, { "docid": "22463765", "title": "", "text": "case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively. EC 5-9 (emphasis added). We have searched the cases carefully and have found no instance where defense counsel was actually permitted to testify against his own client while purporting to continue in a representative capacity. Nor is this an instance in which-counsel’s stipulation came as a matter of surprise. At the suppression hearing the government had made clear their position that James would be called as a witness. After the suppression hearing, recognizing this possibility, James could have withdrawn as counsel; instead his response at the suppression hearing was that if “I am forced to go to the stand, I want it with the explicit situation [sic] that I will not be barred from participating when the case is held.” App. at 112. The sixth amendment is designed to give the defendant a full panoply of rights. The framers of the amendment did not propose it to assure an individual counsel a right to testify against his own client and still participate in the case. Arguably, the stipulation was even coerced by reason of the fact that the government presented Zepp’s counsel with what was in effect an ultimatum — either enter into the stipulation or be subjected to examination as a witness and face possible implication as a coconspirator. Trial counsel’s interest in testifying on his own behalf impaired the exercise of independent professional judgment on behalf of his client. From our view, the admission of such testimony" }, { "docid": "15693162", "title": "", "text": "in Jackson that “A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the volun-tariness of his confession are actually and reliably determined.” Further, the majority pronounced, the reliability of a confession has nothing to do with its voluntariness and “proof that a defendant committed the act with which he is charged and to which he has confessed is not to be considered when deciding whether a defendant’s will has been overborne.” Under the circumstances and since there had been no such hearing here, a remand is in order that there may be a hearing and determination on the issue of voluntariness whether or not the issue had been raised by an objection patently frivolous at the time it was made, as this one was. So I join in the remand solely because of Jackson v. Denno, supra. With the greatest of deference, I do not agree that it was open to us to consider on this record whether or not “the court committed reversible error in permitting this appellant to be asked about his prior conviction.” The Supreme Court in Fitzpatrick v. United States unanimously concluded: “Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circum stances connecting him with the alleged crime. * * * The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him * * In Raffel v. United States the Court reiterated that when an accused takes the stand in his own behalf, he does so as does any other witness. His waiver of Fifth Amendment rights is not partial the court said, adding, “having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” So it is that" }, { "docid": "656458", "title": "", "text": "constitutes a mere formality, satisfying prong one of Disciplinary Rule 5-101(B)(2). Id. We therefore first examine whether Mr. Seidel’s giving testimony to identify the recorded voices constitutes a mere formality. The cassette in question allegedly contains a tape-recorded telephone conversation between two persons. Mr. Seidel endeavors to testify to identify the two persons as himself and Mr. Silverman. Deeming this testimony as relating to a matter of “formality” necessarily indicates that giving such testimony would be, for example, “merely ceremonious”. Webster’s Third New International Dictionary 893 (1976). In this regard, an Ethical Consideration to the New York Code of Professional Responsibility provides guidance: Occasionally a lawyer is called upon to decide in' a particular case whether the lawyer will be a witness or an advocate. If a lawyer is both counsel and witness, the lawyer becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his or her own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively. N.Y.Code Prof.Resp. EC 5-9. Employing this guidance and the common sense meaning of the words “solely to a matter of formality”, the Court believes that the testimony must relate to a matter which is subject to little question, dispute, or cross-examination on the issue of credibility. In the instant case, Mr. Seidel recorded the conversation. His testimony as to the identity of the persons whose voices he allegedly recorded, and as to whether these are the actual unaltered voices he recorded, is integral to the admissibility of the Recorded Conversation. Also, Mr. Seidel stresses that the voice of the other person belongs to his adversary. Certain items, including his credibility as a witness, or the substantive bases for his testimony, will" }, { "docid": "23455317", "title": "", "text": "testimony given at the hearing, the district court concluded that defendant was not a credible witness and credited Inspector Aiesi’s version of the events that transpired on August 19th and November 24th. In sum, Inspector Aiesi testified that on August 19, 1982, the day Speiss was arrested, Speiss confessed to him only after Inspector Aiesi had twice apprised him of his Miranda rights and after Speiss had signed a written waiver of his rights. With respect to the November 24th confession, Inspector Aiesi testified that defendant Speiss called him and arranged the meeting. Inspector Aiesi informed Speiss of his Miranda rights, and Speiss signed a written waiver. In addition, Speiss made a handwritten statement in which he stated that his attorney did not know about the meeting and that he did not want his attorney to know about it. At trial, defendant Speiss moved to suppress both statements on the ground that they were inadmissible under Fed.R. Crim.P. 11(e)(6)(D) because they were made during the course of plea negotiations. The district court denied defendant’s motion and admitted the statements in redacted form so as to avoid prejudice to the other defendants. Defendant Speiss does not challenge this ruling on appeal. At the suppression hearing, Speiss’ counsel mentioned that the admission of the November confession might present Sixth Amendment problems. To this objection, the judge responded that he would not rule on the Sixth Amendment challenge because, although Speiss’ contention might form the basis of an additional motion to suppress, the motion before him failed to include any Sixth Amendment arguments. Speiss never amended his first motion or submitted a second motion dealing with his Sixth Amendment contention. In fact, aside from his counsel’s passing reference at the hearing, defendant Speiss never raised this argument during the proceedings below and, instead, raises it for the first time on appeal. On numerous occasions, this court has held that a defendant waives a particular argument for reversal if he failed to raise that contention at trial. See United States v. Nero, 733 F.2d 1197, 1207 (7th Cir.1984); United States v. Welsh, 721 F.2d" }, { "docid": "8599392", "title": "", "text": "prior to questioning, he was again advised of his rights by Agent Pinol. After being advised of his rights on each of these occasions, Pomares was told that he faced heavy penalties for his smuggling activities, that he was his own best lawyer, and that the wisest course of action would be to cooperaté with the government rather than exercise his right to remain silent. Pomares agreed to cooperate, and confessed twice. On the second of these occasions, Agent Pinol took handwritten notes of what was being said. These notes were eventually put into the form of a typewritten report and introduced as an exhibit in the suppression hearing held by Judge Bonsai to determine the admissibility of Po-mares’ confession at trial. Judge Bonsai ruled that Pomares’ confession was admissible. On October 4, 1973, during a pretrial conference, the attorney for Veciana raised the issue of “a potential severance problem under Bruton since one of the defendants [Pomares] did give a statement and the other one [Veciana] did not.” Assistant United States Attorney Bannigan responded: “I can resolve that right now. We will not use the statement.” At trial, the government took the position that it had only waived use of the written statement in order to avoid the Bruton problem, but that it had recently learned that Pomares had made an earlier confession, and that' Special Agent Pinol was prepared to testify as to this earlier oral confession. Defense counsel objected that the government had waived its right to introduce any confession and in any event both confessions were essentially one and the same, having been obtained within no more than three hours of each other on the same day. Judge Bonsai concluded that the waiver did not reach to the earlier oral confession. In order to avoid any Bruton problem, however, the court ruled that only those portions of Pomares’ confession could be introduced which dealt with events after Veciana had delivered the last shipment of cocaine. Thus so much of the statement as was admitted in evidence made no mention of Veciana or any transactions in which" }, { "docid": "8619681", "title": "", "text": "224, 91 S.Ct. 643. In a similar case holding that suppressed statements made in the absence of counsel could be used for impeachment, the Second Circuit also noted that it would be a different question if the prior admission were found to be unconstitutionally coerced. United States v. Curry, 358 F.2d 904, 912 (2d Cir. 1965). We conclude that although there is no absolute parallel between the exclusionary rule relative to confessions and that relative to impeaching statements of witnesses, there is a point at which the same considerations apply to both. That point has been reached here because there is a substantial claim by the defendant that the impeaching statement offered by the government was obtained by police threats and other blatant forms of physical and mental duress. Where such a claim is made, and supported by sworn testimony, the court has a duty to conduct its own inquiry and to exclude the statement if found to have been unconstitutionally coerced. Its duty stems from “the concept of due process, which now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part.” United States v. Toscanino, 500 F.2d 267 at 275 (2d Cir. 1974). We emphasize that our holding goes no further than this; it is not to be interpreted as making applicable the Miranda or even pre-Miranda rules inferring involuntariness from circumstances falling short of the grave misconduct here mentioned. Since our decision is premised upon the rationale that use of coerced testimony entails a violation of the defendant’s due process right to a fair trial, there is no standing problem. LaFranee is not complaining of the purported denial of Brown’s constitutional rights, but only of his own. It does not follow that LaFranee had a federal constitutional right' to have voluntariness also put to the jury. That contention is disposed of by Lego, supra, holding that there is no such right. In the case of confessions, Massachusetts has traditionally required voluntariness to be put to the jury if the court resolves the" }, { "docid": "8576070", "title": "", "text": "Rule Ev. 403. Affirmed. CARDAMONE, Circuit Judge, dissenting: Respectfully, I dissent and vote to remand this case to the district court for it to make a finding as to whether Jimenez made a knowing and intelligent waiver of a constitutional right. The district court failed to recognize Jimenez’ statement as being obtained in derogation of his Fifth Amendment right against self-incrimination. Instead, it viewed the failure promptly to object to the officer’s testimony as part of defense counsel’s trial strategy. The district court said: “Having knowledge of the grounds upon which an objection to the evidence could have been made, counsel delayed raising an objection until the close of the government’s case, over a full day and three witnesses later, [sic] constitutes waiver.” Ordinarily, admission of testimony without objection may constitute a waiver, even of a Miranda violation. If that were the case here, I would join the majority in affirming. But Jimenez’ statement cannot be characterized simply as an unwarned but voluntary admission obtained in violation of Miranda. Rather, it was a coerced and unwarned statement that was obtained in violation of Jimenez’ Fifth Amendment rights. The Supreme Court has recently noted that Miranda warnings are not constitutionally mandated, but serve instead as a prophylactic measure designed to insure that the right against compulsory self-incrimination is protected. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Oregon v. Elstad, — U.S.-, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222 (1985). In El-stad, the Supreme Court observed that while an unwarned admission taken in violation of Miranda would be suppressed, the fruits of that confession, including sub sequent confessions, witnesses, or physical evidence, would not be similarly suppressed unless the initial confession was coerced and involuntarily made in violation of the Fifth Amendment. Id. Here, Jimenez’" }, { "docid": "21431569", "title": "", "text": "Yunis’ journey aboard the Butte. Since we find that Yun-is waived his sixth amendment right, we need not resolve whether that right attached on September 15th or earlier. For the same reason, we also do not examine whether Yunis’ entitlement to sixth amendment rights at trial permits him to exclude his confession by arguing that these rights were previously violated during his interrogation at sea. The trial judge found that Yunis’ agreement to answer questions without counsel (following his receipt of the Miranda warnings) was not a valid waiver of his sixth amendment rights, because the judge had already found the waiver ineffective as to Yunis’ fifth amendment rights. The same principle of symmetry leads us to the opposite conclusion. There can be no doubt that the warnings administered to Yunis effectively advised him of his rights under both amendments. Agent Hansen testified that he made a particular effort to explain to Yunis the role of lawyers in the American justice system and Yunis’ entitlement to one free of charge. Because we have already found that Yunis’ waiver, following the Miranda warnings, was effective with respect to his fifth amendment rights, we find it was similarly effective with respect to his right to counsel. As the Supreme Court recently held in Patterson v. Illinois, — U.S. -, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), the standard for knowing and voluntary waiver of rights under these two amendments is the same. Therefore, we find no sixth amendment ground for suppressing Yunis’ confession. C. Whether Yunis’ Confession is Inadmissible Because of Unreasonable Delay Between Arrest and Arraignment The district court also suppressed Yunis’ confession for the independent reason that Yunis’ journey across the Mediterranean on board the Butte was not a “reasonable delay” within the meaning of 18 U.S.C. § 3501(c) (1982). The operation of this statute deserves brief discussion. Under the so-called McNabb-Mallory rule, the Supreme Court has required suppression of confessions obtained after “unnecessary delay” between arrest and arraignment. See, e.g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354" }, { "docid": "8570675", "title": "", "text": "the armed robbery of the bank in violation of 18 U.S.C. § 2113(a), (b) and (d) and 18 U.S.C. § 2. Clark plead not guilty and was tried before a jury. At trial Clark moved to suppress the evidence concerning the oral confession. He also moved to strike the in-eourt identification, claiming that certain irregularities in the lineup tainted that identification. The trial judge denied both motions. English testified for the government implicating Clark as joining in planning the robbery and as aiding and abetting as a lookout. The jury returned a verdict of guilty and Clark was sentenced to twelve years in prison. Clark has addressed his appeal primarily to the issue of the claimed violation of his fifth amendment right not to be compelled to be a witness against himself in light of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He insists that his confession was coerced and should not have been admitted in evidence against him. The record suggests that these same coercive factors also resulted in Clark’s possible waiver of his sixth amendment right to counsel representation and advice prior to subjecting himself to police interrogation. It is virtually impossible here to separately analyze and consider the claimed violation of those rights. We observe that evidence which is offered to show that a confession was the product of coercion may also be relevant on the issue of whether there was an accompanying voluntary waiver of the right to counsel. Presented for determination here is the question whether the fifth and sixth amendment rights of an accused, who had previously indicated his desire to consult with an attorney, were violated when he was interviewed at the insistence of government agents without the presence of an attorney. The single issue underlying the purported waiver of each of those constitutional rights is whether the record supports the conclusion that such waiver was voluntarily made. The standard of voluntariness is not whether the accused was coerced in traditional terms but whether appropriate measures were taken to safeguard his rights and to insure that his" }, { "docid": "2770334", "title": "", "text": "plea agreements with the government, while Walker went to trial. Prior to trial, Walker moved to suppress his confession because it was made involuntarily and in violation of his rights to remain silent and to have a lawyer present. The court held a three-day suppression hearing but ultimately denied the motion to suppress. It also denied Walker’s motion to compel production of Agent Spotts’s notes of his interview with Walker, finding that the notes were cumulative of the FBI report, which had already been produced. At trial, both Keith Johnson and McLau-rin testified against Walker, and the government used Walker’s own confession. Walker’s defense theoiy was that there were only two people involved in the robbery, or, if there were three people involved, he was not one of them. In order to support this defense, he called Andre Maurice Johnson (no relation to co-conspirator Keith), who had recently been incarcerated on separate drug charges, to testify that he had been with Walker at the time of the robbery. The jury was not convinced by his alibi, and after a three-day trial it convicted Walker on the conspiracy and aggravated robbery charges and acquitted him on the firearm charge. His motions for a judgment of acquittal and a new trial were denied, and he was sentenced to 276 months’ imprisonment. II A. Confession For understandable reasons, the argument Walker has emphasized on appeal concerns the admission of his confession. “The ultimate question of whether a confession is voluntary is a matter of law that must be reviewed de novo in this court.” United States v. Jordan, 223 F.3d 676, 683 (7th Cir.2000). Nonetheless, we review the court’s factual findings only for clear error, id., especially when the suppression decision turned on the credibility of the witnesses. See United States v. Withers, 972 F.2d 837, 841 (7th Cir.1992). The same standard applies to a district court’s consideration of whether a waiver of Miranda rights was voluntary, see United States v. Combs, 222 F.3d 353, 362 (7th Cir.2000), and whether a defendant invoked his right to counsel, see United States v. McKinley, 84" }, { "docid": "8576071", "title": "", "text": "unwarned statement that was obtained in violation of Jimenez’ Fifth Amendment rights. The Supreme Court has recently noted that Miranda warnings are not constitutionally mandated, but serve instead as a prophylactic measure designed to insure that the right against compulsory self-incrimination is protected. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Oregon v. Elstad, — U.S.-, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222 (1985). In El-stad, the Supreme Court observed that while an unwarned admission taken in violation of Miranda would be suppressed, the fruits of that confession, including sub sequent confessions, witnesses, or physical evidence, would not be similarly suppressed unless the initial confession was coerced and involuntarily made in violation of the Fifth Amendment. Id. Here, Jimenez’ Miranda-less statement was coerced under circumstances calculated to undermine his ability to exercise his free will. Jimenez was rear-handcuffed and held at gunpoint by four or more government agents when he was asked where he had been. Such circumstances so clearly indicate a lack of voluntariness and free will that they are sufficient to satisfy the compulsion element of a Fifth Amendment violation as a matter of law. Having established a constitutional deprivation the next question is what standard governs its waiver. The district court apparently thought such right could be waived as a matter of trial tactics. The majority affirms contenting itself simply by observing that the finding of a trial tactic was not clearly erroneous. This conclusion fails to deal with the legal proposition before us — which is, did the failure by Jimenez’ counsel to object to the introduction into evidence of Jimenez’ coerced statement constitute a voluntary and intelligent waiver of a right to object to evidence obtained in violation of a constitutional right. The law is clear that Jimenez’ rights" }, { "docid": "22463764", "title": "", "text": "own attorney because his statement, if believed, left only one other inference — if he did not flush the toilet the only person who could have flushed the toilet was Jo Ann Zepp. Thus, given the evidence that the toilet flushed while Zepp and defense counsel were alone in the house, and without any other evidence indicating who between the two of them flushed the toilet, the reasonable inference is that Zepp flushed the toilet thereby destroying evidence. With your own lawyer testifying against you, should there be any surprise that the jury finds you guilty? Defense counsel testified against Jo Ann Zepp and she was denied the right to cross-examine him in violation of the sixth amendment. Not only was Jo Ann Zepp denied her sixth amendment right to cross-examine but counsel’s testimony deprived her of effective assistance of counsel. The roles of an advocate and of a witness are inherently inconsistent. The Ethical Considerations of the Model Code of Professional Responsibility provide: Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively. EC 5-9 (emphasis added). We have searched the cases carefully and have found no instance where defense counsel was actually permitted to testify against his own client while purporting to continue in a representative capacity. Nor is this an instance in which-counsel’s stipulation came as a matter of surprise. At the suppression hearing the government had made clear their position that James would be" }, { "docid": "22383235", "title": "", "text": "particular Vice Lord had been omitted from the indictments, asked: “[W]hy wasn’t he indicted, he did everything.” App. 7. Petitioner also began to explain that there was a witness who would support his account of the crime. At this point, Gresham interrupted petitioner, and handed him a Miranda waiver form. The form contained five specific warnings, as suggested by this Court’s Miranda decision, to make petitioner aware of his right to counsel and of the consequences of any statement he might make to police. Gresham read the warnings aloud, as petitioner read along with him. Petitioner initialed each of the five warnings, and signed the waiver form. Petitioner then gave a lengthy statement to police officers concerning the Jackson murder; petitioner’s statement described in detail the role of each of the Vice Lords — including himself — in the murder of James Jackson. Later that day, petitioner confessed involvement in the murder for a second time. This confession came in an inter view with Assistant State’s Attorney (ASA) George Smith. At the outset of the interview, Smith reviewed with petitioner the Miranda waiver he had previously signed, and petitioner confirmed that he had signed the waiver and understood his rights. Smith went through the waiver procedure once again: reading petitioner his rights, having petitioner initial each one, and sign a waiver form. In addition, Smith informed petitioner that he was a lawyer working with the police investigating the Jackson case. Petitioner then gave another inculpatory statement concerning the crime. Before trial, petitioner moved to suppress his statements, arguing that they were obtained in a manner at odds with various constitutional guarantees. The trial court denied these motions, and the statements were used against petitioner at his trial. The jury found petitioner guilty of murder, and petitioner was sentenced to a 24-year prison term. On appeal, petitioner argued that he had not “knowingly and intelligently” waived his Sixth Amendment right to counsel before he gave his uncounseled postindictment confessions. Petitioner contended that the warnings he received, while adequate for the purposes of protecting his Fifth Amendment rights as guaranteed by Miranda," }, { "docid": "13252893", "title": "", "text": "prosecutors to eliminate for cause potential jurors whose scruples against capital punishment will affect their deliberation of fact issues. In Adams v. Texas, the Supreme Court reversed a death sentence on the basis that striking jurors under section 12.31(b) violates the Wither-spoon doctrine because it permits the exclusion of jurors who would be “affected” by the possibility of the death penalty, but who nevertheless could still follow the court’s instruction and obey their oaths. If § 12.31 had been used to exclude jurors, Mayo would have a constitutional claim. Failure to use it gives rise to none. III. Mayo contends that the oral confession and the two written confessions admitted at trial were obtained in violation of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to assistance of counsel because the statements were taken after Mayo told the police that he wanted a lawyer and after the police had promised leniency in exchange for his confession. At an evidentiary hearing before the trial court on the admissibility of the confessions, the state called as witnesses five police officers involved in arresting, questioning, or detaining Mayo and the person Mayo called from jail. Mayo testified for himself and called as witnesses the police officer who drove him from the site of the arrest to the city jail, a relative, and a friend. The court made a written finding that the confessions were voluntary. Specifically, the court found that the defendant initiated the interview leading up to the confessions, the police gave the defendant Miranda warnings on three different occasions, the defendant was informed of his right to an attorney and expressly waived it, and the police officers did not promise the defendant leniency in exchange for his statements. These factual findings, if correct, are sufficient to defeat Mayo’s claims that the confessions should be suppressed. State-court determinations of the ultimate question whether a confession is voluntary are not binding in a federal habeas corpus proceeding. Subsidiary factual questions, however, are entitled to the presumption under 28 U.S.C. § 2254(d) that a state court’s written determinations made after a" }, { "docid": "21431568", "title": "", "text": "deception [and was] ... made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran, 475 U.S. at 421, 106 S.Ct. at 1141. Accordingly, we find no violation of the fifth amendment that warrants suppressing Yunis’ confession. B. Whether Yunis Voluntarily and Knowingly Waived His Sixth Amendment Rights The district court held that Yunis’ sixth amendment right to counsel had attached as of the time of his arrest, because the “government had long since committed itself to prosecute Yunis.” Yunis, 681 F.Supp. at 928. The trial judge thus invoked the general principle laid down in such cases as United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984), as to when a defendant’s right to counsel begins. In the dis trict court and again on appeal, the government has vigorously contended that Yunis’ right to counsel was triggered only by the indictment that was filed against him in Washington on September 15, 1987— roughly mid-way through Yunis’ journey aboard the Butte. Since we find that Yun-is waived his sixth amendment right, we need not resolve whether that right attached on September 15th or earlier. For the same reason, we also do not examine whether Yunis’ entitlement to sixth amendment rights at trial permits him to exclude his confession by arguing that these rights were previously violated during his interrogation at sea. The trial judge found that Yunis’ agreement to answer questions without counsel (following his receipt of the Miranda warnings) was not a valid waiver of his sixth amendment rights, because the judge had already found the waiver ineffective as to Yunis’ fifth amendment rights. The same principle of symmetry leads us to the opposite conclusion. There can be no doubt that the warnings administered to Yunis effectively advised him of his rights under both amendments. Agent Hansen testified that he made a particular effort to explain to Yunis the role of lawyers in the American justice system and Yunis’ entitlement to one free of charge. Because we have already found" }, { "docid": "22324455", "title": "", "text": "Guillan that the documents did not belong to him, but belonged to someone named Jorge Martinez. Ramirez-Chilel denies hearing his Miranda rights and denies ever telling Guil-lan that he prepared or sold false immigration or identification documents. He claims that he said that everything belonged to Martinez, and that Martinez was allowed to live at the trailer in 1999 when he went back to Guatemala for a period of time. Ramirez-Chilel was then transported to the local DEA Drug Task Force Office in the St. Lucie County police sta tion. He was read his Miranda rights again and signed the form. The form was in English and Guillan translated it into Spanish for Ramirez-Chilel. Thus, Guillan contends that Ramirez-Chilel voluntarily waived his Miranda rights and made a post-arrest statement. In the written statement, Ramirez-Chilel stated: “I bought the typewriter and the laminator from Office Depot in February, 1999. Jorge Martinez left me the counterfeits, for $800, because I thought it was good work for me.” Ramirez-Chilel contends that after being arrested and taken to the sheriffs office, Guillan threatened to deport, kill, or send him to an island if he did not sign the confession, so he signed it. During the suppression hearing, the magistrate judge, faced with a fundamental credibility question, reviewed the testimony of each witness and made the following factual findings: (1) Ramirez-Chilel answered the door and consented to the officers’ entry into his home; (2) Ramirez-Chilel voluntarily consented to the search of his home; and (3) Ramirez-Chilel voluntarily waived his Miranda rights and gave an admissible written statement. The magistrate judge noted that the “motion boils down to essentially an issue of credibility.” The magistrate judge focused on whether or not any threats of deportation and death were made — Pineda did not testify to hearing any threats and Guillan denied that threats were made. The magistrate judge also noted that both Pineda and Ramirez-Chilel were personally interested in suppressing the evidence, and that the officers did not have any vested interest in the case. Hyde did not work for the INS or any INS task" }, { "docid": "7595328", "title": "", "text": "not affect the feasibility of calculating fees for attorney and lay pro se litigants. . Lack of objectivity has been used to support denying attorney's fees to lay pro se litigants. See, e.g., Pitts v. Vaughn, 679 F.2d 311, 312 (3d Cir.1982). A lawyer, however, unlike a lay litigant, has been trained to distinguish meritorious claims from frivolous ones. Cf. Barrett v. Bureau of Customs, 651 F.2d 1087, 1089-90 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982). But see Falcone, 714 F.2d at 647; White v. Arlen Realty Development Corp., 614 F.2d at 388. . The same standard has been applied to awards of attorney’s fees to prevailing defendants under section 1988. Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). . A further argument made against awarding attorney’s fees to attorney pro se litigants is that it encourages lawyers to act as both advocate and witness in contravention of the ethical prohibition against lawyers performing such dual roles. See Rybicki, 584 F.Supp. at 860-61 (majority opinion); id. at 865-66 (Grady, J., dissenting in part and concurring in part). This prohibition is reflected in the ABA Model Code of Professional Responsibility (1980) which states as an \"ethical consideration”: EC 5-9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the case of another, while that of a witness is to state facts objectively. See also EC 5-10, the corresponding \"disciplinary rules” DR 5-101 and 5-102, and" } ]

[ { "docid": "22657684", "title": "", "text": "may impose death penalty based on his finding of aggravating factor because such factor is not element of offense to be determined by jury); Spaziano v. Florida, 468 U. S. 447, 465 (1984) (same). And we would also find it difficult to reconcile any such rule with our precedent holding that the senteneing-related circumstances of recidivism are not part of the definition of the offense for double jeopardy purposes. Graham, 224 U. S., at 623-624. For these reasons, we reject petitioner’s constitutional claim that his recidivism must be treated as an element of his offense. IV We mention one final point. Petitioner makes no separate, subsidiary, standard of proof claims with respect to his sentencing, perhaps because he admitted his recidivism at the time he pleaded guilty and would therefore find it difficult to show that the standard of proof could have made a difference to his ease. Accordingly, we express no view on whether some heightened standard of proof might apply to sentencing determinations that bear significantly on the severity of sentence. Cf. United States v. Watts, 519 U. S. 148, 156, and n. 2 (1997) (per curiam) (acknowledging, but not resolving, “divergence of opinion among the Circuits” as to proper standard for determining the existence of “relevant conduct” that would lead to an increase in sentence). The judgment of the Court of Appeals is Affirmed. Justice Scalia, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting. Because Hugo Roman Almendarez-Torres illegally reentered the United States after having been convicted of an aggravated felony, he was subject to a maximum possible sentence of 20 years’ imprisonment. See 8 U. S. C. § 1326(b)(2), Had he not been convicted of that felony, he would have been subject to a maximum of only two years. See 8 U. S. C. § 1326(a). The Court today holds that § 1326(b)(2) does not set forth a separate offense, and that conviction of a prior felony is merely a sentencing enhancement for the offense set forth in § 1326(a). This causes the Court to confront the difficult question whether the Constitution requires" } ]

[ { "docid": "16942479", "title": "", "text": "requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “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). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico also contends that the district court erred in enhancing his sentence under 18 U.S.C. § 2252A(b)(1) for a prior conviction relating to sexual abuse, because the prior conviction was not alleged in the indictment. Tampico claims that this is unconstitutional after the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which found that sentencing factors must be proved beyond a reasonable doubt. Tampico recognizes, however, that this issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . Pattern of activity involving the sexual abuse or exploitation of a minor is defined as any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same or different victims; or (C) resulted in a conviction for such conduct. U.S.S.G. § 2G2.2, cmt. n.1. ." }, { "docid": "1590844", "title": "", "text": "to establish company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Cont’l Coffee Prods. v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). In this case, the district court methodically considered Ferguson’s summary judgment evidence under the Cazarez elements and found she had failed to circumstantially establish a causal link between her workers’ compensation claim and her termination. On appeal, the only evidence Ferguson cites as ignored by the district court is the fact that she was assigned to a different job role following her return to work after her first work-related injury. However, throughout the underlying lawsuit, Ferguson staked her retaliation claim on her second workers’ compensation injury. Ferguson presented her allegations of negative treatment following her first injury for the purpose of establishing pretext in her ADEA claim. The district court’s summary judgment order makes clear that the court fully considered this evidence in that context. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "6562243", "title": "", "text": "PER CURIAM: Defendant-Appellant Andre McDaniels appeals the sentences imposed following his guilty-plea conviction on nine counts of tampering with a witness by corrupt persuasion. The district court sentenced him to 78 months of imprisonment on each count, with those sentences to run concurrently with each other but consecutively to federal sentences that McDaniels was already serving following prior convictions on charges of coercion and enticement. McDaniels argues that the sentences imposed by the district court were substantively unreasonable because the district court did not afford adequate weight to the applicable guidelines range — U.S.S.G. § 5G1.3 in particular — in its balancing of the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). He did not object on this basis in the district court, however, so plain error review applies. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). McDaniels does not attempt to show that the alleged error either “affected [his] substantial rights” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” however, so he cannot establish reversible plain error. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and citations omitted); see also United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "23446408", "title": "", "text": "commit clear error in determining the amount of cocaine to be used in sentencing Gibbs. CONCLUSION The convictions and sentences of all seven Appellants are hereby AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Cooks pled guilty to various drug charges arising from the conspiracy at issue in this case. . We note that the evidence suggests otherwise, as a co-conspirators' phone number was found on a caller ID in a bedroom in which Crawford was sleeping. . Apparently, the district court determined that McGee did not have standing to challenge the search of his wife’s purse and McGee’s brief does not challenge this ruling. . Despite McGee's suggestions to the contrary, the issue under Whren is whether there was an objective basis for the stop. It is irrelevant whether the officers’ motivation was to conduct a traffic stop in the hope of finding drugs. Whren, 517 U.S. at 813, 116 S.Ct. 1769 (foreclosing any argument that the Constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.) As long as the traffic stop is proper, it is irrelevant whether the officers actually issued a citation for driving with a suspended license. . We also note that the identification of the author/declarant is not always necessary for admission of a drug ledger as a co-conspirator’s statement. United States v. Fierro, 38 F.3d 761, 773 (5th Cir.1994). . Alternatively, we note that minor participant status need not be granted to Thomas since his sentence was only based on drug activity in which he was actually involved. See United. States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995) (holding that when sentence is based on activity in which defendant was actually involved, Sentencing Guidelines do not require reduction in base offense level even though defendant's activity in larger conspiracy may have been minor or minimal); United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir.l997)(holding that because only the" }, { "docid": "17270819", "title": "", "text": "470, 475 (5th Cir.1997) (failure to exhaust); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir.2009) (mootness). Essentially for the reasons stated by the district court in its well-reasoned 26 February 2008 opinion and detailed 14 November 2008 final judgment, we affirm. Because the Government no longer seeks to impose liability on Looney pursuant to 26 U.S.C. § 6672 and has been ordered to pay Looney $2,607, her § 6672 challenges are moot. Looney’s automatic-stay claims are without merit. Although referred to as “penalty” in the statute, the liability imposed pursuant to 26 U.S.C. § 6672 is, in essence, a tax. See, e.g., Cash v. United States, 961 F.2d 562, 565 (5th Cir.1992) (“Although denoted a penalty in the statute, the liability imposed by § 6672(a) is not penal in nature because it only recovers for the Government the same amount the employer was required to withhold and remit.”). Therefore, the liability imposed pursuant to 26 U.S.C. § 6672 is exempted from the automatic stay pursuant to 11 U.S.C. § 362(b)(9)(D) (“an assessment for any tax”). To the extent Looney’s automatic-stay claim may be construed to be based on 26 U.S.C. § 7433, she failed to exhaust her administrative remedies. See 26 U.S.C. § 7433(d)(1) (exhaustion requirement). Finally, Looney’s claim that the district court’s judgment violated the “separate document” rule pursuant to the Federal Rule of Civil Procedure 58(a) is without merit because, by entering final judgment, the district court properly complied with the rule. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "608444", "title": "", "text": "asserting conelusionally that his “injuries were caused by the unlawful policies and practices of the Shreveport Police Department.” Brown never identified any policy or custom, and, failing that first step, also failed to show a policymaker’s actual or constructive knowledge of the same and to link the constitutional violation to that policy or custom. His appellate brief is likewise deficient. The district court properly granted summary judgment. To support his claim that Chief White-horn failed to train his subordinate officers adequately, Brown had to show that: (1) the training policies were inadequate; (2) Chief Whitehorn was deliberately indifferent to the inadequacy; and (3) the inadequate policy directly caused Brown’s constitutional injury. Yet Brown sought to survive summary judgment with more eon-clusional allegations that fail to raise a genuine issue of material fact as to these elements. He claimed only that “Chief Whitehorn failed to train and supervise employees .of the Shreveport Police Department and plaintiff has suffered a deprivation of his constitutional rights[ ] as a result of it.” As regards the second required element, for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all" }, { "docid": "12679807", "title": "", "text": "as 'it does not “(i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of the creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested parties.” Derouen v. Murray, 604 So.2d 1086, 1091 n. 2 (Miss. 1992) (quoting American Law Institute, Principles of Corporate Governance: Analysis and Recommendations § 7.01(d) (1992)) (internal quotations omitted). After briefing by the parties, the district court determined that because not all members of Equity were parties to the lawsuit, it could expose McLarty to multiple suits and result in inequitable distribution of recovery. The district court thus held that the Derouen exceptions did not apply and dismissed, without prejudice, Dalton’s suit for lack of standing. A careful review, of the record in this case, a full consideration of the parties’ briefs on appeal, and a thorough analysis of the district court’s ruling lead us to conclude that the district court’s judgment was correct. The district court properly determined that Dalton lacked standing under Mississippi law to pursue her direct claim against McLarty. Therefore, we AFFIRM the district court’s decision, essentially for the reasons articulated in its memorandum opinion and order. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir, R. 47.5.4." }, { "docid": "16942478", "title": "", "text": "The volume of pornographic images, the sexual molestation of numerous children, Tampico’s membership in NAMBLA, and his smudging the reputation of the Big Brothers program take this case outside the heartland of ordinary cases. Viewing the record as a whole, we cannot say that the district court’s departure was unreasonable. Thus, we find no reversible error in the district court’s upward departure from the sentencing guidelines. D Finally, Tampico claims the district court erred by accepting as evidence the portions of the PSR to which Tampico objected. He contends that, for the portions of the PSR to which he objected, the government should either have been required to introduce evidence to support those facts, or the court should not have considered those facts in enhancing Tampi-co’s sentence. Generally, “a PSR bears sufficient indi-cia of reliability, such that a sentencing judge may consider it as evidence in making the factual determinations required by the Sentencing Guidelines.” United States v. Huerta, 182 F.3d 361, 364 (5th Cir.1999). Although Rule 32 of the Federal Rules of Criminal Procedure requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “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). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico" }, { "docid": "16194244", "title": "", "text": "that leave to amend should be freely given “when justice so requires.” A district court, however, also has the power of managing its cases and docket and may consider factors, such as undue delay, bad faith, dilatory motive, and futility of the amendment, when deciding whether to grant leave to amend. Priester, 708 F.3d at 678. Considering the futility of the proposed amendment and the delay in submitting it, there is no abuse of discretion. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See SEC v. Ross, 504 F.3d 1130 (9th Cir.2007) (discussing the Alpha Telcom litigation); see also SEC v. Rubera, Nos. 12-35108, 12-35415, 535 Fed.Appx. 553, 2013 WL 3929231 (9th Cir. July 31, 2013) (mem.); SEC v. Rubera, 412 Fed.Appx. 980 (9th Cir.2011) (mem.); SEC v. Rubera, 350 F.3d 1084 (9th Cir.2003). . Bustos appears to be working at cross-purposes. He successfully appealed an order disgorging his sales commissions. Ross, 504 F.3d 1130. By ensuring that the sales agents could keep their commissions, even less was left for the defrauded investors to recover. . The Oregon district court held—and the Ninth Circuit affirmed—that Bustos had violated a preliminary injunction by filing the Texas complaint without leave and that the Texas action directly interferes with the receivership proceedings. Rubera, 535 Fed. Appx. 553. . The SEC was named as a defendant but is not a party to this appeal. . The district court also denied as moot a motion by some of the appellees to transfer the case. . See Rubera, 535 Fed.Appx. at 554 (citing Barton v. Barbour, 104 U.S. 126, 128-29, 26 L.Ed. 672 (1881)) (affirming the injunction \"to prevent a subset of a receivership’s creditors from suing the receiver to procure a judgment that comes from the receivership’s coffers, thereby advantaging the litigious creditors over their more quiescent fellows when it comes time to distribute the receivership's assets”)." }, { "docid": "5670275", "title": "", "text": "reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "17572752", "title": "", "text": "supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "8304485", "title": "", "text": "that Local 556 applied its established initiation fee policy arbitrarily or unequally. On its face, the Local 556 bylaws broadly require payment of a $100 initiation fee to become a member of the union — the bylaws themselves draw no distinctions between nonmembers who must pay this fee. The only exemptions from this requirement are those covered by the International Constitution, with regard to which Local 556 has no discretion. Thus, even if this Court were to conclude that exempting only certain former members from paying the initiation fee while not exempting others is a breach of the duty of fair representation, Local 556 is not the entity responsible for that breach. Summary judgment in favor of Local 556 was therefore appropriate. III. CONCLUSION • For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of Local 556 on all claims raised by the Plaintiffs-Appellants. Pursuant to 5th Cir. R, 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . AFNOs are not permitted to attend union meetings or participate in union elections but are still represented by Local 556. AFNOs are not considered union members and pay a fee lower than monthly due payments. . Martin and Starzinger filed an initial complaint on February 17, 2015. Pursuant to Federal Rule of Civil Procedure 15(a)(2), Fisher and Jackson were joined in the suit, and an amended complaint was filed by all four Plaintiff-Appellants on June 1, 2015. All of the Plaintiffs-Appellants claim a violation of the LMRDA, but only Fisher and Jackson claim retaliation and a breach of the duty of fair representation." }, { "docid": "16168517", "title": "", "text": "show that the ... sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.” Id. at 719. Here, the district court imposed a sentence at the bottom of the higher, incorrect guidelines range and stated that the guidelines range was “fair and reasonable.” We see nothing in the record to indicate that the district court’s reasoning in choosing a sentence would have been the same had it been confronted with a guidelines range of 97-121 months. The Government has not shown that Peralta’s sentence was not influenced by an erroneous calculation. See Ibarra-Luna, 628 F.3d at 717-19. III. CONCLUSION For the above reasons, we AFFIRM the convictions and sentences of Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing in accordance with this opinion. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated that they were not married but were \"just living together.” . The dissent apparently discounts Vasquez’s testimony because he did not testify as to Ceballos's specific statements and also parses through Vasquez’s testimony attempting to cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n. 2. Further, the dissent attempts to discredit Vasquez's testimony because he had been drinking alcohol when he observed Ceballos at the hotel. Id. at 4. \"It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir.2005). . The dissent would find the district court erred in applying a two-level enhancement for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the dissent to support such a view are not advanced in Ceballos's brief on appeal and therefore are not properly before us. As we view Ceballos’s brief, he is raising" }, { "docid": "21604962", "title": "", "text": "it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless— (i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described; (ii) the court finds that there exists a mitigating circumstance of a land or to a degree, that— (I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking ac count of any amendments to such sentencing guidelines or policy statements by Congress; (II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and (III) should result in a sentence different from that described; or (iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance" }, { "docid": "21604961", "title": "", "text": "harm of the ongoing possession and distribution of the images. Cf. Paroline, 134 S.Ct. at 1722 (“Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.”). Several circuit courts have expounded on. this issue post-Paroline. See, e.g., United States v. Galan, 804 F.3d 1287, 1289-91 (9th Cir. 2015) (“[T]he principles set forth by the [Supreme] Court lead to the conclusion that [the defendant] should not be required to pay for losses caused by the original abuser’s actions.”); United States v. Dunn, 777 F.3d 1171, 1181-82 (10th Cir. 2015) (“We think it inconsistent with ‘the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct’ to hold [the defendant] accountable for those harms initially caused by [the victim’s] abuser.” (quoting Paroline, 134 S.Ct. at 1725)); see also United States v. Miner, 617 Fed.Appx. 102, 103 (2d Cir. 2015) (holding that the district court adequately disaggregated the victim’s losses). We have not yet directly addressed this issue and leave it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under" }, { "docid": "5670274", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "2104261", "title": "", "text": "32 (the level assigned to offenses involving at least one and a half kilograms, but less than five kilograms, of methamphetamine). See § 2Dl.l(c)(4). Therefore, based on adjustments made to Jones’ original base-offense level (two-point enhancement for use of a firearm, and three-point reduction for acceptance of responsibility), his total offense level became 31, with a corresponding sentencing range of 188-235 months. Accordingly, the court erred in determining Amendment 782 did not lower Jones’ sentencing range. In denying the motion, the court relied solely on its calculation of the offense level, and, therefore, did not consider whether the modification was warranted under the § 3553(a) factors, or the nature and seriousness of the danger to the community that may be posed by a reduction in the sentence. See United States v. Larry, 632 F.3d 933, 937 (5th Cir.2011). Accordingly, the court abused its discretion in denying the motion. See id. The order denying the motion to reduce Jones’ sentence pursuant to § 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s reconsideration of the proper calculation of the Guidelines sentencing range in the light of Amendment 782, and also to determine whether the reduction is warranted in the light of the relevant sentencing factors. See 18 U.S.C § 3582(c); U.S.S.G. § 1B1.10, comment. (n.l(B)(i)-(ii)). VACATED and REMANDED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "22722479", "title": "", "text": "did not raise this argument in the district court, review is limited to plain error. See Calverley, 37 F.3d at 162-64. Slaughter concedes that a two-level reduction in his offense level would not affect the applicable sentencing guideline range. If his offense level were reduced from 46 to 44, his offense level would still be treated as the maximum offense level of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment, (n.2). Because Slaughter concedes that the correction of this alleged error would not change the applicable guideline sentencing range, we decline to address the merits of this claim. See United States v. Lopez, 923 F.2d 47, 51 (5th Cir.1991). Slaughter argues that his conviction should be reversed because the jury was not required to find the quantity of drugs as an element of each of the charged offenses. Slaughter’s argument is foreclosed by this court’s precedent. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000); United States v. Watch, 7 F.3d 422, 426 (5th Cir.1993). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "7953577", "title": "", "text": "contends the district court erred in refusing to grant him leave to amend his complaint rather than dismissing his case. District courts have wide latitude to consider requests for leave to amend. In deciding whether to permit an amendment, a district court may consider factors such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously! allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). We conclude that the district court gave Rogers sufficient prior opportunity to plead his best case and amend his complaint, and the district court did not abuse its discretion in dismissing Rogers’s case without permitting Rogers to file a third complaint. See, e.g., U.S. ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403-04 (5th Cir. 2004) (holding that the district court did not abuse its discretion in denying leave to file a third amended complaint where the plaintiff had already been given opportunities to amend and did not indicate what additional facts he could plead to correct the deficiencies in his complaint). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. , Rogers does not appeal the dismissal of his claims for violations of his Fourteenth Amendment right to due process, his Texas Whistleblower Act claims, or his defamation claims, except his defamation claim against Coleman. . Other allegations include: \"Chief Rogers was terminated ... in retaliation for the legitimate pursuit of his duties as the chief law enforcement officer of the City of Yoakum \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties and \"Chief Rogers was disciplined, retaliated against for exercising and performing his official law enforcement duties....” . His allegations under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, are simply" }, { "docid": "17572751", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC.alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" } ]

[ { "docid": "3969580", "title": "", "text": "a removal petition within thirty days, and the thirty-day clock then restarts each time a new defendant is served. Neither the Second Circuit nor the Supreme Court has weighed in on the question of which rule of timing should apply. In considering a different question, the Supreme Court held that Section 1446(b)’s time for removal does not begin to run until the defendant has been officially served with a summons and the complaint. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). The Court reasoned that “one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority asserting measure stating the time with which the party served must appear and defend.” Id. at 350, 119 S.Ct. 1322. In Varela v. Flintlock Const., Inc., 148 F.Supp.2d 297 (S.D.N.Y.2001), the court held that the “last-served rule” is more consistent with Murphy Brothers, because “it preserves every defendant’s opportunity to seek removal and provides every defendant with a uniform time in which to do so, where under the first served defendant rule, the procedural rights of later served defendants [may] slip away before one is subject to any court’s authority.” Id. at 300 (quotation marks and citation omitted). Other district courts i.n this Circuit have rejected the “first-served rule” for similar reasons. See, e.g., Tate, 151 F.Supp.2d at 224-25 (rejecting “first-served rule” in favor of “McKinney Rule because it enables plaintiffs to use “dilatory tactics to overcome the legitimate removal rights of defendants”); Russell v. LJA Trucking Inc., No. 00-CV-7629, 2001 WL 527411, at * 1-2 (E.D.N.Y. May 11, 2001) (rejecting “first-served rule” in favor of “later-served rule,” holding, inter alia, that it supports a more natural reading of Section 1446(b) and plaintiffs will not be unduly prejudiced by its application). The Court concludes that application of the “first-served rule” would not be fair to the defendants, nor does it seem appropriate in light of Murphy Brothers and the language of Section 1446(b). Because As-traZeneca PLC filed its Consent to Removal" } ]

[ { "docid": "5957082", "title": "", "text": "v. Lovecchio, 8 F.Supp.2d 214, 218 (E.D.N.Y.1998). . Plaintiffs complain that defendants have obstructed their discovery efforts. They argue that because defendants have deprived them of needed discovery, they should not have to bolster their jurisdictional allegations with factual support, apparently agreeing with defendants that after discovery but prior to an evidentiary hearing or trial, some factual support normally is required to survive a jurisdiction-testing motion. See PL Mem. 41. This motion is not the proper context in which to raise such concerns, as plaintiffs could have moved the Court to compel discovery at the time of the alleged infractions. In any case, the matters about which plaintiffs complain all revolve around ownership and control of bank accounts overseas, see PL Mem. 3, Berry Aff. Ex. 3 ¶¶ 41, 42, 43, 44, 77, 101; id. Ex. 5, at 3, issues which are not material to the Court’s jurisdictional determinations here. Accordingly, plaintiffs' argument does not convince the Court that it should apply the standard applicable to Rule 12(b)(2) motions prior to jurisdictional discovery. . 902 F.2d 194 (2d Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). . Id. at 197. . Id. . See Barrett v. United States, 646 F.Supp. 1345, 1350 (S.D.N.Y.1986); accord Dardana Ltd. v. Yuganskneftegaz, No. 00 Civ. 4633(DAB), 2001 WL 1131987, at *2 (S.D.N.Y. Sept. 24, 2001); Coan v. Bell Atl. Sys. Leasing Int’l, Inc., 813 F.Supp. 929, 942 (D.Conn.1990); see also Jazini v. Nissan Motor Co., 148 F.3d 181, 184, 185 (2d Cir.1998); Cornell v. Assicurazioni Generali S.p.A., No. 97 Civ. 2262, 2000 WL 1099844, at *1 (S.D.N.Y. Aug. 7, 2000) (quoting Jazini, 148 F.3d at 185). . Yellow Page Solutions, Inc. v. Bell Atl. Yellow Pages Co., No. 00 Civ. 5663(MBM), 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (quoting Ball, 902 F.2d at 197) (footnote added); accord Morrison v. N.Y. State Div. for Youth Children & Family Servs., No. 98 Civ. 643, 2000 WL 532762, at *1 (S.D.N.Y. Apr. 25, 2000); Gulf Union Ins. Co. Saudi Arabia v. Bella Shipping Co., No. 91 Civ. 2814(PKL), 1994 WL" }, { "docid": "11763089", "title": "", "text": "prisoners have failed to exhaust administrative remedies. Booth v. Churner, 532 U.S. 731, 742, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Alexandroai v. California Dep’t of Corrections, 985 F.Supp. 968, 970 (S.D.Cal.1997) (plaintiff must “work within the prison system to have his case heard and then come to the Court after he has exhausted his administrative remedies as required by federal law”). The Supreme Court has held that “the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Failure to Exhaust Administrative Remedies Does Not Deprive the Court of Jurisdiction In previous opinions, this Court has held that the failure to exhaust administrative remedies under the PLRA deprives a court of jurisdiction. See Cole v. Miraflor, No. 02 Civ. 9981, 2003 WL 21710760, at *1 (S.D.N.Y. July 23, 2003); Sulton v. Wright, 265 F.Supp.2d 292, 296 (S.D.N.Y.2003). This conclusion is consistent with a number of courts in this district. See, e.g., Harris v. Totten, 244 F.Supp.2d 229, 231 (S.D.N.Y.2003) (noting that exhaustion raises a “challenge to the court’s jurisdiction”); Paulino v. Amicucci, No. 02 Civ. 208, 2003 WL 174303, at *2 (S.D.N.Y. Jan.27, 2003) (same); Benitez v. Straley, No. 01 Civ. 0181, 2002 WL 31093608, at *2 (S.D.N.Y. Sept. 18, 2002) (same) (adopting magistrate’s report but modifying reasoning to determine “challenge to the court’s jurisdiction” instead of Rule 12(b)(6)). The Second Circuit, however, has recently held that “failure to exhaust administrative remedies is not a jurisdictional predicate” under the PLRA. Richardson v. Goord, 347 F.3d 431, - (2003). Defendants’ Motion to Dismiss Is Converted to a Motion for Summary Judgment Because the PLRA’s exhaustion requirement does not implicate the Court’s jurisdiction, the defendants’ 12(b)(1) motion will not be considered. The issue of nonexhaustion should, however, “be resolved as early as possible by the court.” McCoy v. Goord, 255 F.Supp.2d 233, 248 (S.D.N.Y.2003) (citing Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 536 (7th Cir.1999)). It" }, { "docid": "12353800", "title": "", "text": "of the EEOC filing (dually with CHRO), the EEOC filing was timely under the 300-day limit. March 3, 2013 was a Sunday. The EEOC’s official publication provides under the caption “Time Limits for Filing a Charge” that “Holidays and weekends are included in the calculation, although if the deadline falls on a weekend or holiday, you will have until the next business day.” (emphasis added). Courts considering the question also reach that result by applying the guidelines set forth in Rule 6(a), Fed. R.Civ.P. Specifically, district courts that have addressed the proper calculation method for timeliness of an EEOC complaint in a federal discrimination action have employed Rule 6(a), Fed.R.Civ.P. See, e.g., Gamas v. Anheuser-Busch, Inc., No. Civ. 03-89-PB, 2005 WL 419690, at *2 (D.N.H. Feb. 23, 2005) (“it is reasonable to assume that the drafters of the 300-day limitation period [for an EEOC complaint] had Rule 6(a) in mind when they enacted the limitation period” in Title VII); Davitt v. Open MRI of Allentown, LLC, No. Civ A. 03-5612, 2003 WL 23162429, *4 (E.D.Pa. Oct. 8, 2003) (holding plaintiffs filing of EEOC complaint timely under Rule 6(a) because “Fed.R.Civ.P. 6 applies to time calculations made pursuant to [Title VII] section 2000e[,] et seq. of Title 42”); Bethelmie v. New York City Health and Hospitals Corp., No. 00 CIV. 3707(FM), 2001 WL 863424, at *2 (S.D.N.Y. July 31, 2001) (in the context of Americans with Disabilities Act (“ADA”), “pursuant to Rule 6(a), Saturdays and Sundays must be included in calculating whether Bethelmie’s ADA claim was timely filed with the EEOC”); Bonebrake v. West Burlington Ind. Sch. Dist., No. 3-99-CV-90209, 2001 WL 901265, *4 (S.D.Iowa Aug. 9, 2001) (“The Court holds that the ADEA is an applicable statute for purposes of Rule 6(a) and therefore the 300 day filing period may not expire on a Sunday.”). Rule 6(a)(1)(C) explicitly provides that in computing time periods, one must “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not" }, { "docid": "11698588", "title": "", "text": "1044; see also 14C Wright et al., Federal Practice and Procedure § 3732, at 336-39 & nn. 74-75 (citing a significantly larger number of cases adopting the first-served rule). Yet the cases also indicate a trend away from that rule and in favor of the last-served rule. For example, while the Fifth Circuit adopted the first-served rule in 1986, see Brown, 792 F.2d at 481-82, the last-served rule was adopted more recently by the Sixth Circuit in 1999, see Brierly, 184 F.3d at 533 & n. 3, and the Eight Circuit in 2001, see Marano Enterprises, 254 F.3d at 756-57. As one leading federal treatise notes, there is a trend away from the “traditional view ... [that] the 30-day removal period begins to run when the first defendant is served.” 16 Moore’s Federal Practice § 107.30[3][a][4][c], at 107-178. “[M]ore recently courts have held that this rule penalizes those defendants that are served after others, and these courts calculate the 30-day period separately for each defendant.” Id. This Court hereby adopts the last-served rule. The Court is persuaded that this rule is preferable for several reasons. First, although the text is not absolutely clear, the most plausible reading of the statute is that Congress intended to extend the right of removal to all defendants in a civil action, regardless of when they became parties to a case. See 28 U.S.C. § 1441(a) (permitting removal by “the defendant or the defendants ” (emphasis added)). The statute itself says nothing of the order in which defendants are or are not served, and this Court is reluctant to read additional limitations into the statutory text, which merely demands that a defen dant remove a case promptly once it is served or becomes aware of the basis for removal. See Brierly, 184 F.3d at 533 (“[A]s a matter of statutory construction, holding that the time for removal commences for all purposes upon service of the first defendant would require us to insert ‘first’ before ‘defendant’ into the language of the statute. We are naturally reluctant to read additional words into the statute, however.” (citation omitted))." }, { "docid": "11360436", "title": "", "text": "F.R.D. 65, 91 (S.D.N.Y.2004). . \"Technically, only the requirements of section (a) of Rule 23 are 'prerequisites' to a class action, and section (b) describes the categories of classes maintainable as class actions,” but the Fifth Circuit requires that a class action qualify for at least one of the Rule 23(b) categories to be certified. Horton v. Goose Creek Independent School District, 690 F.2d 470, 484 n. 25 (5th Cir.1982), cert denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983). . In certifying the class in Lincoln Savings, the court found, Significantly, Plaintiffs’ case is not predicated exclusively or even predominantly on Rule 10b-5(b). The central issue is whether Defendants orchestrated ... a far-reaching scheme to inflate the apparent worth and prospects of ACC/Lincoln, while simultaneously concealing its latent but material weaknesses. These allegations are consonant with § 1 Ob-5 (a) and (c). 140 F.R.D. at 428. . Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); 7A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Prac. & Proc. Civ.3d § 1765 at 269 (2d ed.1986). . The Berger standard has since been applied to cases not involving securities fraud. See, e.g., In re Electronic Data Systems Corp., 224 F.R.D. 613 (E.D.Tex.2004) (for ERISA as well as PSLRA claims); In the Matter of American Comm. Lines, LLC, Nos. Civ. A. 00-252, 00-2967, and 00-3147, 2002 WL 1066743 (E.D.La. May 28, 2002) (maritime negligence and strict liability); Umsted v. Intelect Communications, Inc., Civ. A. 3:99-CV-2604, 2003 WL 79750 (N.D.Tex. Jan.7, 2003); Ogden v. AmeriCredit Corp., 225 F.R.D. 529, 532-38 & n. 2 (N.D.Tex.2005) (ERISA); In re Reliant Energy ERISA Litig., No. Civ. A. H-02-2051, 2005 WL 2000707 (S.D.Tex. Aug.18, 2005). . The Supreme Court has stated that the adequacy, typicality, and commonality requirements \" 'tend[] to merge'” and that they \" ‘serve as guideposts for determining whether ... maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in" }, { "docid": "12982010", "title": "", "text": "approach is known as the “first-served defendant rule.” The second is known as the “last-served defendant rule.” The Circuit Courts of Appeals have split on which rule to adopt. The Eleventh Circuit Court of Appeals has not adopted either approach. District courts within the Eleventh Circuit Court of Appeals have not unanimously adopted one rule over the other. Prior decisions of the United States District Court for the Middle District of Alabama have clearly adopted the “first-served defendant rule” followed by the United States Court of Appeals for the Fifth Circuit and other courts. See, e.g., Jerrell, 348 F.Supp.2d at 1281 (McPherson, J.) (This district follows the “first served defendant rule.”); Jeffcoat v. American Gen. Life & Accident Ins. Co., Civil Action No. 01-D-325-N, 2001 WL 611196 at *2-*3 (M.D.Ala. May 16, 2001) (DeMent, J.) (adopting the “first-served rule” under which the thirty-day removal period begins to run for all defendants on the date the first defendant receives the initial complaint as set forth by Brown v. Demco, Inc., 792 F.2d 478 (5th Cir.1986)). Whatever this Court might think of the relative merits of the “first-served defendant rule” and the “last-served defendant rule,” in the absence of direction from either the United States Supreme Court or the Eleventh Circuit Court of Appeals, this Court will not deviate from the path selected by the other judges of this district. Accordingly, the Court finds that the “first-served defendant rule” is applicable to this case. The application of the “first-served defendant rule” to this case is rather straight-forward and requires remand. Charter is the defendant first served with Summons and Complaint in this case. That service occurred more than thirty-days prior to Crown’s removal of this action. Accordingly, the removal is untimely. The fact that Crown was not a named or identified party defendant at the time the thirty-day period expired does not alter the application of the “first-served defendant rule.” See, generally, Brown, 792 F.2d 478. Indeed, the Brown case which helped established the “first-served defendant rule” and which has been followed by this district involves a very similar fact pattern to" }, { "docid": "20452903", "title": "", "text": "given Section 1441 should be given Section 205. (Magnolia invoked this same portion of Section in an attempt to support their argument that removal was untimely.) . Courts outside the Fifth Circuit generally reject the first-served defendant rule in favor of a last-served (or \"each served”) defendant rule. See, e.g., Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir.2008) (noting that, and following, the trend in recent case law favors the last-served defendant rule); Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 755 (8th Cir.2001) (endorsing last-served defendant rule); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 532 (6th Cir.1999)(later-served defendants are entitled to 30-days to remove, and pointing out that “[t]he statutory language [of Section 1446(b)] itself contemplates only one defendant and thus does not answer the question of how to calculate the timing for removal in the event that multiple defendants are served at different times, one or more of them outside the original 30-day period”) McKinney v. Board of Trustees of Maryland Community College, 955 F.2d 924 (4th Cir.1992)(each defendant has 30 days from the time they are served with process to join a timely-filed notice of removal). .See, e.g., Vistra Trust Co. v. Stoffel, No. 08-2844, 2008 WL 5454126 (S.D.N.Y. Dec. 29, 2008)(noting that federal courts construe removal statutes narrowly and ultimately finding that \"the generally applicable rule of unanimity” applies to cases under the Convention); NPI, Inc. v. Pagoda Ventures, Ltd., No. 08-346, 2008 WL 3387467 (N.D.Okla. Aug. 8, 2008) (\"The weight of authority holds that 9 U.S.C. § 205 is subject to the unanimity rule”); Marine Solutions Services, Inc. v. Ribelin Lowell & Co. Ins. Brokers of Alasita, Inc., No. 05-134, 2005 WL 1880618 (D.Alaska July 27, 2005) (remanding based on procedural defect due to lack of unanimity and noting that, in Section 205, \"Congress provided only one exception to the application of general removal law. This court cannot create another one”). These courts seem to merely require that all defendants join in removal; the courts do not appear to address whether the consent that is required from co-defendants" }, { "docid": "13547264", "title": "", "text": "action.”) (internal quotations and citation omitted). Finally, the rule requiring removal statutes to be construed narrowly to limit removal supports the majority rule. See Brown, 792 F.2d at 482 (“[B]y restricting removal to instances in which the statute clearly permits it, the rule is consistent with the trend to limit removal and with the axiom that the removal statutes are to be construed against removal.”); see also Varney, 653 F.Supp. at 840. B. Minority Last Served Rule Courts applying the minority last-served rule allowing each defendant thirty days from the date on which he or she received the complaint “have cited fairness to defendants and case-specific circumstances as the main reasons for departing from the majority rule.” Olsen v. Foundation Health Plan, et al., 1999 WL 390842, at *2 (N.D.Cal. June 11, 1999). They have been concerned that the “first served” rule would enable and encourage plaintiffs to manipulate the timing of service of the summons and complaint to secure a state forum by serving defendants suspected of desiring removal more than thirty days after the first defendant received the complaint. See McKinney, 955 F.2d at 927-928 (applying last served rule and focusing on concerns of plaintiffs ability to manipulate and defeat removal by serving defendants at different times); Goularte v. ABEX Corp., 1997 WL 294397, at *3 (N.D.Cal. May 28, 1997) (“[T]he ‘first served’ rule may encourage plaintiffs to deliberately manipulate the time of service to secure a state forum....”) The district court in Goularte was also concerned about the unfairness of letting one defendant’s failure to remove within thirty days prevent other defendants “who had the misfortune of being served late in an action” from removing the case. See Goularte v. ABEX Corp., 1997 WL 294397, at *2. Some courts applying the minority rule also reason that if an earlier served defendant does not timely file a notice of removal, this does not preclude a later served defendant from filing a notice of removal and the earlier served defendant may join the notice of removal and consent to it. See Ford, 857 F.Supp. at 709; see also Brierly" }, { "docid": "3969579", "title": "", "text": "v. Martin, 178 U.S. 245, 249, 20 S.Ct. 854, 44 L.Ed. 1055 (1900)). While a defendants’ signature on the removal petition itself is not required, see Town of Moreau v. State Dep’t of Envtl. Conservation, No. 96-CV-983,1997 WL 243258, at *6 (N.D.N.Y. May 5, 1997), each defendant must submit some form of “unambiguous written evidence of consent,” id at *4; Henderson, 920 F.Supp. at 1187 (“Each party must independently and unambiguously file notice of its consent and its intent to join in the removal within the thirty day period.”). As noted above, the majority of courts apply the “first-served rule.” A minority of courts apply the “last-served rule” or the “later-served rule,” which restarts the thirty-day clock each time a defendant is served. See, e.g., Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir.1999). Another group of courts apply an intermediate rule, sometimes referred to as the “McKinney Rule” derived from McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924, 928 (4th Cir.1992), which requires the first-served defendant to file a removal petition within thirty days, and the thirty-day clock then restarts each time a new defendant is served. Neither the Second Circuit nor the Supreme Court has weighed in on the question of which rule of timing should apply. In considering a different question, the Supreme Court held that Section 1446(b)’s time for removal does not begin to run until the defendant has been officially served with a summons and the complaint. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). The Court reasoned that “one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority asserting measure stating the time with which the party served must appear and defend.” Id. at 350, 119 S.Ct. 1322. In Varela v. Flintlock Const., Inc., 148 F.Supp.2d 297 (S.D.N.Y.2001), the court held that the “last-served rule” is more consistent with Murphy Brothers, because “it preserves every defendant’s opportunity to seek removal and provides every defendant" }, { "docid": "12854928", "title": "", "text": "contrary to plain meaning of section 3621(b) and section 3624(c) as well as sound public policy); Grimaldi v. Menifee, No. 04 Civ. 1340, 2004 WL 912099 (S.D.N.Y. April 29, 2004) (Batts, J.) (rejecting statutory interpretation underlying December 2002 policy); Schoenfeld v. Menifee, No. 04 Civ. 3551, 2004 WL 1516797 (S.D.N.Y. July 7, 2004) (Buchwald, J.) (December 2002 policy incompatible with section 3621(b)). But see Loeffler v. Menifee, 326 F.Supp.2d 454 (S.D.N.Y.2004) (Castel, J.) (upholding policy); Cohn v. Federal Bureau of Prisons, 302 F.Supp.2d 267 (S.D.N.Y.2004) (Pauley, J.) (same). On August 18, 2004, BOP proposed a rule under the APA’s notice-and-comment procedure that purported to remedy the infirmities found by those courts that rejected the December 2002 Policy. Community Confinement, Proposed Rule, 69 Fed.Reg. 51213 (Aug. 18, 2004) (to be codified 28 C.F.R. Part 570). The effect of the proposed rule was identical to the December 2002 Policy in that it limited BOP’s ability to designate inmates to community confinement to the last ten percent of the prison sentence being served, not to exceed six months. However, in response to the findings of various courts that BOP has discretion under Section 3621(b) to place offenders to a term of imprisonment in CCCs prior to the time set forth in Section 3624(c), BOP proposed “to exercise its discretion categorically to limit inmates’ community confinement to the last ten percent of the prison sentence being served, not to exceed six months.” Id. As explained by BOP in information supplementing the proposed rule, “[t]his categorical exercise of discretion is permissible based on the Supreme Court’s recognition that, even when a statutory scheme requires individualized determinations, the decisionmaker has authority to rely on rulemaking to resolve certain issues of general applicability (unless Congress clearly expresses an intent to withhold that authority).” Id. (citing Lopez v. Davis, 531 U.S. 230, 243-44, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001)). Thus, where BOP had previously reasoned that it did not have the discretion to place an inmate in a CCC, BOP now acknowledged that it had this discretion, but that it categorically determined that its discretion would not" }, { "docid": "3337003", "title": "", "text": "58-61 (W.D.Tex.2003) (declining to exercise supplemental jurisdiction over pendent plaintiffs who did not opt in to FLSA claim); see also McClain v. Leona’s Pizzeria, Inc., No. 04C1913, 2004 WL 1745750, at *l-*4 (N.D.Ill. July 30, 2004) (denying Rule 23 motion for class certification where court had previously certified a collective class on FLSA claim because Rule 23 was not a superior method for adjudicating the state law claims); Goldman v. RadioShack Corp., No. 03-CV-0032, 2003 WL 21250571, at *1 — *11 (E.D.Pa. Apr. 16, 2003) (granting conditional certification of FLSA collective action and postponing a decision on Rule 23 class certification of state claims because further discovery was needed regarding the predominance test of Rule 23(b)(3)); De La Fuente v. FPM Ipsen Heat Treating, Inc., No. 02 C 50188, 2002 WL 31819226, at *l-*2 (N.D.Ill.Dec.16, 2002) (granting § 16(b) certification and denying Rule 23 motion without prejudice to re-file after the close of the opt-in period for the FLSA collective action); Scott v. Aetna Servs., Inc., 210 F.R.D. 261, 264-68 (D.Conn. 2002) (certifying Rule 23 class where FLSA class was previously certified); Ballaris v. Wacker Siltronic Corp., No. 00-1627, 2002 WL 926272, at *3 (D.Or. Feb.7, 2002) (noting the absence of a pendent-party issue because the plaintiff was intending to move for certification of a Rule 23 class on state law claims that only consisted of the FLSA opt-in members); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 95-96 (S.D.N.Y.2001) (certifying Rule 23 class for state law claims where approximately 350 plaintiffs had already filed consents for collective action on FLSA claim). Because the parties have not addressed these important issues, the court declines to grant plaintiff’s motion for certification of a Rule 23 class on his state law claims based on the record currently before the court. The court will, however, deny the motion without prejudice to plaintiff re-filing a Rule 23 motion for class certification of his state law claims at a later date, perhaps (for reasons suggested by some of the courts in the cases cited supra) after the scope of the opt-in class has been ascertained." }, { "docid": "13901775", "title": "", "text": "that “ ‘an individual may be held liable for aiding discriminatory conduct’ ” under the NYHRL (citation omitted)), with Trovato, 238 A.D.2d at 334, 655 N.Y.S.2d 656 (acknowledging the contrary conclusions of Tomka and Steadman, but concluding that “[t]o find a coemployee liable as an aider and abettor would ignore the statutory and legal authority limiting the parties who may be sued for employment discrimination.”). Moreover, this divergence has yet to be resolved by the New York Court of Appeals. The resulting confusion has caused several district courts to decline to exercise their supplemental jurisdiction over a plaintiffs NYHRL claims. See Ponticelli v. Zurich Am. Ins. Group, 16 F.Supp.2d 414, 439-40 (S.D.N.Y.1998) (following Houston v. Fidelity, No. 95 Civ. 7764, 1997 WL 97838, at *10 (S.D.N.Y. Mar.6, 1997)); see also Heinemann v. Howe & Rusling, 260 F.Supp.2d 592, 596-97 (W.D.N.Y.2003) (citing examples in dicta). Nevertheless, the majority of the other federal district courts in New York considering the issue have elected to follow the lead of the Second Circuit in Tomka and apply its rule of “actual participation” to hold individual defendants personally hable under the NYHRL for discriminatory conduct via § 296(6). See, e.g., Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1160-61 (E.D.N.Y.2003); Jong-Fwu v. Overseas Shipholding Group, Inc., No. 00 Civ. 9682, 2002 WL 1929490, at *7 n. 3 (S.D.N.Y. Aug.21, 2002); Lewis v. Triborough Bridge & Tunnel Auth., 77 F.Supp.2d 376, 379 & n. 6 (S.D.N.Y.1999); Petrosky v. N.Y. State Dep’t of Motor Vehicles, 72 F.Supp.2d 39, 64-65 (N.D.N.Y.1999); Pell v. Trs. of Columbia Univ., No. 97 Civ. 0193, 1998 WL 19989, at *21 (S.D.N.Y. Jan.21, 1998). We deem this approach to be the most prudent because, as noted by Judge Young in the Eastern District, although the Second Circuit’s ruling in Tomka “has been criticized, it is binding upon this Court.” Perks, 251 F.Supp.2d at 1160; see also Petrosky, 72 F.Supp.2d at 65 (stating that “the most important precedential authority presented is from the Second Circuit as this Court is bound by its decisions of law.”). We will, therefore, decline defendants’ invitation and will exercise" }, { "docid": "17412040", "title": "", "text": "that exhaustion raises “challenge to the court’s jurisdiction”); Paulino v. Amicucci, No. 02 Civ. 208(LAP), 2003 WL 174303, at *2 (S.D.N.Y. Jan. 27, 2003) (same); Benitez v. Straley, No. 01 Civ. 0181(RCC)(RLE), 2002 WL 31093608, at *2 (S.D.N.Y.Sept. 8, 2002) (adopting magistrate’s report but modifying reasoning to apply Rule 12(b)(1) standard to determine “challenge to the court’s jurisdiction” instead of Rule 12(b)(6)); Hines v. Valhalla County Corr. Facility, No. 01 Civ. 6935(SAS), 2002 WL 1822740, at *1-2 (S.D.N.Y. Aug. 8, 2002) (treating exhaustion as jurisdictional); Johnson v. Bendheim, No. 00 Civ. 720(JSR), 2001 WL 799569, at *3 (S.D.N.Y. July 13, 2001) (same). Although the Second Circuit has not explicitly ruled on the issue of whether exhaustion is jurisdictional, it has held indirectly that it is not. The court has ruled, for example, that failure to exhaust is an affirmative defense that defendants must establish, Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.1999) (“[A] defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiffs failure to comply with the PLRA’s requirements.”), that exhaustion need not be pled in the complaint, Snider v. Melindez, 199 F.3d 108, 112 (2d Cir.1999), and that nonexhaustion may be waived. See Davis v. New York, 316 F.3d 93, 101 (2d Cir.2002). Subject matter jurisdiction, of course, must be pled, and its absence is not waivable. The majority of courts to specifically address the issue have agreed that exhaustion in the PLRA context is not jurisdictional. See Santiago v. Meinsen, 89 F.Supp.2d 435, 441 n. 5 (S.D.N.Y.2000) (“The vast majority of courts that have considered the issue have similarly concluded that exhaustion under the PLRA is not a jurisdictional prerequisite.”) (collecting eases); Howard v. Headly, 72 F.Supp.2d 118, 123 (E.D.N.Y.1999) (noting the PLRA “provides that a court may dismiss claims of these sorts without requiring the plaintiff to exhaust administrative remedies” and “a district court ‘would not be empowered to do so if the exhaustion provision deprived the court of jurisdiction over the action’ ” (quoting Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.1998))); Cruz v. Jordan, 80 F.Supp.2d" }, { "docid": "2877522", "title": "", "text": "the docket-clogging task of arduously sifting through every paper placed before it by a pro se party when opposing a motion for summary judgment, in search for evidence of a question of fact, and (4) fly in the face of numerous Supreme Court and Second Circuit cases stating that pro se status does not exempt a part from complying with a court’s well-justified procedural rules. . In addition to relying on the cases cited by Magistrate Judge Lowe in Part III.I. of his Report-Recommendation, the Court relies on Nunez v. Hasty, 04-CV-1282, 2006 WL 2589254, at *10 (E.D.N.Y. Sept. 8, 2006) (\"The question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice.”) [internal quotation marks and citation omitted], and Fulmore v. Mantis, 00-CV-2831, 2001 WL 417119, at *9, & n. 26 (S.D.N.Y. Apr. 23, 2001) (\"Mere disagreement in treatment does not amount to an Eighth Amendment violation.”) [collecting cases]. . In addition to relying on the authorities cited by Magistrate Judge Lowe, the Court relies on the following cases: Waldo v. Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing a claim under Fed. R. Civ. 4[m] where pro se plaintiff failed to serve John Doe defendants during the year that elapsed between filing of complaint and issuance of order of dismissal by court); Thomas v. Keane, 99-CV-4302, 2001 WL 410095, at *1, 5 (S.D.N.Y. April 23, 2001) (dismissing claim under Fed. R. Civ. 4[m] where pro se plaintiff failed to serve John Doe defendants during the year that elapsed between filing of complaint and issuance of order of dismissal by court). .In addition to being prohibited by various procedural rules, such language violates the New York State Bar Association's guidelines on civility in litigation, which the Northern District of New York has adopted. (General Order 25, at 1.) The Guidelines (which are available on the Northern" }, { "docid": "19759456", "title": "", "text": "Affidavit of Consent (\"Aff.Consent”), attached to Notice of Removal, ¶ 4. . See Remand Mot. . See id. ¶ 5. . See 10/2/06 Affirmation of Nicholas Russo. . See Affidavit of Peninna Oren in Opposition to Remand (\"Oren Aff.”). . Id. ¶¶4, 6. . Id. ¶ 9. . Id. . 9/1/06 Email from Tokio Marine Nichido (\"Nichido Fax”), Exhibit A to Oren Aff. . 28 U.S.C. § 1441(a). . Vermande v. Hyundai Motor Am. Inc., 352 F.Supp.2d 195, 197 (D.Conn.2004) (citing Lupo v. Human Affairs Int’l., Inc., 28 F.3d 269, 274 (2d Cir.1994)). . See Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir.2000). . Whitaker v. American Telecasting, Inc., 261 F.3d 196, 205-206 (2d Cir.2001). . See 28 U.S.C. § 1446(b). . See Fed.R.Civ.P. 6(a) (providing that Rule 6 applies \"in computing any period of time prescribed .... by any applicable statute”). . See Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir.1991). . Id. . See Varela v. Flintlock Constr., Inc., 148 F.Supp.2d 297, 299 (S.D.N.Y.2001) (collecting cases, and stating that the first-served defendant rule is the “majority” rule in this district). . Id. . Bashford v. Crown Fin. Group, No. 05 Civ. 2217, 2005 U.S. Dist. LEXIS 15811, at *10, 15 (S.D.N.Y. July 27, 2005) (collecting cases outside the Second Circuit, finding that the defendants’ removal was untimely under all possible rules of construction of section 1446(b)). See also Fernandez v. Hale Trailer Brake & Wheel, 332 F.Supp.2d 621, 623-24 (S.D.N.Y.2004) (applying the last-served defendant rule). . See Bashford, 2005 U.S. Dist. LEXIS 15811, at *11. . Miller v. First Sec. Inv., 30 F.Supp.2d 347, 350 (S.D.N.Y. 1998). Accord Balazik v. County of Dauphin, 44 F.3d 209, 214 (3d Cir.1995). . Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1049 (11th Cir.2001). . Codapro Corp. v. Wilson, 997 F.Supp. 322, 325 (S.D.N.Y.1998). . Id. at 326. . See Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co. of N. Am., 841 F.2d 1254, 1261-62 (5th Cir.1988). See also Michaels v. New Jersey, 955 F.Supp. 315, 321-22 (D.N.J.1996) (finding" }, { "docid": "12353801", "title": "", "text": "Oct. 8, 2003) (holding plaintiffs filing of EEOC complaint timely under Rule 6(a) because “Fed.R.Civ.P. 6 applies to time calculations made pursuant to [Title VII] section 2000e[,] et seq. of Title 42”); Bethelmie v. New York City Health and Hospitals Corp., No. 00 CIV. 3707(FM), 2001 WL 863424, at *2 (S.D.N.Y. July 31, 2001) (in the context of Americans with Disabilities Act (“ADA”), “pursuant to Rule 6(a), Saturdays and Sundays must be included in calculating whether Bethelmie’s ADA claim was timely filed with the EEOC”); Bonebrake v. West Burlington Ind. Sch. Dist., No. 3-99-CV-90209, 2001 WL 901265, *4 (S.D.Iowa Aug. 9, 2001) (“The Court holds that the ADEA is an applicable statute for purposes of Rule 6(a) and therefore the 300 day filing period may not expire on a Sunday.”). Rule 6(a)(1)(C) explicitly provides that in computing time periods, one must “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Fed.R.Civ.P. 6(a)(1)(C) (emphasis added). Courts have therefore found timely an EEOC filing on a Monday where the deadline would otherwise have been Sunday. See, e.g., Bonebrake, 2001 WL 901265, *4 (holding “the 300 day filing period” for filing an EEOC Complaint in an ADEA action “may not expire on a Sunday” so complaint filed on Monday, 301st day, was timely). See also Kane v. Douglas Elliman, Hollyday & Ives, 635 F.2d 141, 142 (2d Cir.1980) (applying Rule 6(a) “in light of the purposes intended to be served by Title VII” and allowing plaintiff the “full span” of days to file Title VII complaint in federal court on Monday, where last day to file would otherwise have been a Sunday). It is clear, therefore, that if the timeliness of Bagley’s first EEOC complaint turned solely upon whether her March 4, 2013 filing fell within the 300-day limit, the filing was timely. Accordingly, in order for Defendants to succeed on their contention that Bagley’s first EEOC filing was untimely, they must" }, { "docid": "17412039", "title": "", "text": "at *4 (S.D.N.Y. Sept. 10, 2002) (citations omitted). In fact, “[s]trict compliance” with the grievance procedure is required, Hemphill v. New York, 198 F.Supp.2d 546, 549 (S.D.N.Y.2002), or else dismissal must follow “inexorably.” Mendoza v. Goord, No. 00 Civ. 0146(GEL), 2002 WL 31654855, at *1 (S.D.N.Y. Nov. 21, 2002); see also Rhames v. Fed. Bureau of Prisons, No. 00 Civ. 4338(AKH), 2002 WL 1268005, at *5 (S.D.N.Y. June 6, 2002) (noting the importance of strict compliance “to avoid the possibility that frequent and deliberate flouting of the administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures” but noting the risk that those procedures become “a snare of forfeiture for a prisoner seeking redress” (citations omitted)). c. Is Exhaustion Jurisdictional? Defendants move to dismiss for lack of subject matter jurisdiction, arguing that the PLRA’s exhaustion requirement is jurisdictional. In fact, a number of courts in the district have assumed that exhaustion is jurisdictional or treated it as such. See, e.g., Harris v. Totten, 244 F.Supp.2d 229, 231 (S.D.N.Y.2003) (noting that exhaustion raises “challenge to the court’s jurisdiction”); Paulino v. Amicucci, No. 02 Civ. 208(LAP), 2003 WL 174303, at *2 (S.D.N.Y. Jan. 27, 2003) (same); Benitez v. Straley, No. 01 Civ. 0181(RCC)(RLE), 2002 WL 31093608, at *2 (S.D.N.Y.Sept. 8, 2002) (adopting magistrate’s report but modifying reasoning to apply Rule 12(b)(1) standard to determine “challenge to the court’s jurisdiction” instead of Rule 12(b)(6)); Hines v. Valhalla County Corr. Facility, No. 01 Civ. 6935(SAS), 2002 WL 1822740, at *1-2 (S.D.N.Y. Aug. 8, 2002) (treating exhaustion as jurisdictional); Johnson v. Bendheim, No. 00 Civ. 720(JSR), 2001 WL 799569, at *3 (S.D.N.Y. July 13, 2001) (same). Although the Second Circuit has not explicitly ruled on the issue of whether exhaustion is jurisdictional, it has held indirectly that it is not. The court has ruled, for example, that failure to exhaust is an affirmative defense that defendants must establish, Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.1999) (“[A] defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiffs failure to comply with the" }, { "docid": "12982009", "title": "", "text": "filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b) (emphasis added). In cases which initially involve multiple defendants who are served on different dates or in cases such as this one, where defendants are added more than thirty days after service on the originally named defendant, application of the timing requirements of 28 U.S.C. § 1446(b) presents a special problem. In such situations, courts must decide whether the thirty-days for removing the action commences once when the first-served defendant is served with the summons and complaint or whether each defendant gets a new thirty-day window for removing the case which commences when each defendant is served. The first approach is known as the “first-served defendant rule.” The second is known as the “last-served defendant rule.” The Circuit Courts of Appeals have split on which rule to adopt. The Eleventh Circuit Court of Appeals has not adopted either approach. District courts within the Eleventh Circuit Court of Appeals have not unanimously adopted one rule over the other. Prior decisions of the United States District Court for the Middle District of Alabama have clearly adopted the “first-served defendant rule” followed by the United States Court of Appeals for the Fifth Circuit and other courts. See, e.g., Jerrell, 348 F.Supp.2d at 1281 (McPherson, J.) (This district follows the “first served defendant rule.”); Jeffcoat v. American Gen. Life & Accident Ins. Co., Civil Action No. 01-D-325-N, 2001 WL 611196 at *2-*3 (M.D.Ala. May 16, 2001) (DeMent, J.) (adopting the “first-served rule” under which the thirty-day removal period begins to run for all defendants on the date the first defendant receives the initial complaint as set forth by Brown v. Demco, Inc., 792 F.2d 478 (5th Cir.1986)). Whatever" }, { "docid": "10362807", "title": "", "text": "296(6), which makes it unlawful to aid or abet a violation of the HRL. Since Tomka was decided, some New York state courts have criticized its holding, see, e.g., Trovato v. Air Express Int’l, 238 A.D.2d 333, 334, 655 N.Y.S.2d 656 (2d Dep’t 1997) (rejecting Tomka and concluding that finding “a co-employee liable as an aider and abetter would ignore the statutory and legal authority limiting the parties who may be sued for employment discrimination”); accord Foley v. Mobil Chem. Co., 170 Misc.2d 1, 11-12, 647 N.Y.S.2d 374 (Sup.Ct. Monroe County 1996), while others have agreed with it; see, e.g., Murphy v. ERA United Realty, 251 A.D.2d 469, 471-73, 674 N.Y.S.2d 415 (2d Dep’t 1998) (citing Tomka with approval, and distinguishing Trovato); Steadman v. Sinclair, 223 A.D.2d 392, 393, 636 N.Y.S.2d 325 (1st Dep’t 1996) (citing Tomka for the proposition that a defendant may be held individually liable for retaliation as an aider and abettor under N.Y. Executive Law § 296(6)). Because of this lack of unanimity among the state courts with respect to Tomka’s interpretation of § 296(6), some district courts have declined to exercise their supplemental jurisdiction over HRL claims against individuals based on an aiding-and-abetting theory. See, e.g., Hockeson v. New York State Office of Gen’l Servs., 188 F.Supp.2d 215, 223 (N.D.N.Y.2002); Houston v. Fidelity, No. 95 Civ. 7764, 1997 WL 97838, *10 (S.D.N.Y.1997) (“Given the unsettled state of the law, it is possible that the parties would have a ‘surer-footed’ reading of the extent of aiding and abetting liability in state court”); but see Duviella v. Counseling Service of Eastern Dist. of New York, No. 00-CV-2424, 2001 WL 1776158, *17 n. 15 (E.D.N.Y. Nov.20, 2001) (rejecting defendants’ request to decline to exercise supplemental jurisdiction over § 296(6) claim, and observing that “Tomka is the current law in this Circuit and therefore binding on lower federal courts”), aff'd, 52 Fed.Appx. 152 (2d Cir. 2002) ; Gemerek v. Buffalo Sewer Auth., No. 99-CV-0879, 2001 WL 603694, *3 (W.D.N.Y. May 23, 2001) (“this Court will not decline to exercise supplemental jurisdiction over plaintiffs HRL claim against Hazzan at this" }, { "docid": "11438462", "title": "", "text": "2.3 million. Q. To his — to him? A. To him. I mean, I’m sure he would have worked out something where it was a credit to have something, but he’s — you know, I want my check.' ”). . Id. . Id. ¶¶ 14-15, 28, (Pacific International, Inc., Pan American Trading Company, Inc., and Pacific Fruit all are alleged to be organized under New York law). . DI 199 at 19. . - U.S. -, 134 S.Ct. 746, 187 L.Ed.2d 624 (20T4). . Actual notice of the lawsuit is not sufficient. Martin v. New York State Dept. of Mental Hygiene, 588 F.2d 371, 373 (2d Cir.1978). . Judge Peck’s statement that it was his \"inclination [] to allow service via Mr. Noboa’s Web site” was not a court order for the purposes of Rule 4(f)(3). . Ehrenfeld v. Salim a Bin Mahfouz, 04 Civ. 9641(RCC), 2005 WL 696769, at *2 (S.D.N.Y. Mar. 23, 2005) (\" 'Service of process under Rule 4(f)(3) is neither a last resort nor extraordinary relief. It is merely one means among several which enables service of process on an international defendant.' ” (quoting Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir.2002))). .See, e.g., Philip Monis USA Inc. v. Veles Ltd., 06 Civ. 2988(GBD), 2007 WL 725412, at *3 (S.D.N.Y. Mar. 12, 2007) (\"Plaintiff, when requesting permission to serve by fax and email, demonstrated both the inadequacy of service on defendants by methods under Rule 4(0(1 )-(2), and the likelihood that the proposed alternative methods would succeed.”); Ehrenfeld, 2005 WL 696769, at *2 (noting that \"[pllaintiff has reasonably asserted that the Court’s intervention is needed here” and describing the proffered reasons that service by conventional means would not be possible); see also Ryan v. Brunswick Corp., 02 Civ. 0133(JTE), 2002 WL 1628933, at *2 (W.D.N.Y. May 31, 2002) (\"Accordingly, although a party need not exhaust all possible methods of service this Court will require parties seeking relief under FRCvP 4(f)(3) to show that they have reasonably attempted to effectuate service on the defendant(s) and that the circumstances are such that the" } ]

[ { "docid": "776154", "title": "", "text": "sounding in tort, including proceedings for judicial review of agency action) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. The newly-enacted 28 U.S.C. § 2412(d)(2)(D) provides: ... “position of the United States” means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings. And another new provision, § 206(b) of the EAJA, provides in part: Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code____ While § 206(b) is consistent with the Sixth Circuit’s view that EAJA fees were available in social security cases, Feldpausch v. Heckler, 763 F.2d 229 (6th Cir. 1985); Couch v. Secretary of Health and Human Services, 749 F.2d 359 (6th Cir. 1984) (per curiam), in several important areas the recent amendments and their accompanying legislative history modify the court of appeals’ prior approach. Most significantly, 28 U.S.C. § 2412(d)(2)(D) explicitly overrules the position enunciated in Trident Marine v. District Engineer, The United States Army Corps of Engineers, Detroit District, 766 F.2d 974 (6th Cir. 1985). There the court held that the “position of the United States” referred only to the government’s litigating position, not to the underlying agency position or to a hybrid of the agency position and litigating position. Id. at 977-980. The legislative history accompanying § 2412(d)(2)(D) states that this view is inconsistent with Congressional intent in enacting the EAJA: ... The term “position of the United States ...” was not explicitly defined under the prior law, causing courts much confusion as to the proper scope of an EAJA proceeding. The Committee here defines the “position” term in" } ]

[ { "docid": "12288020", "title": "", "text": "Ex parte Dugan, 537 F.Supp. 1198 (D.S.C.1982). In addition, this range is consistent with awards in other cases in the Eastern District of North Carolina. See, e.g., Butler v. Heckler, 639 F.Supp. 14 (1985); Jones v. Heckler, No. 83-41-CIV-7 (September 28, 1984) [Available on WEST-LAW, DCTU database]; Cain v. Heckler, No. 81-85-CIV-3 (May 3, 1984) [Available on WESTLAW, DCTU database]. Upon a review of the above factors, the court concludes that $65.00 per hour is the appropriate hourly rate for this case. Despite its quality, the nature of the work involved simply does not merit the maximum EAJA hourly rate. Accordingly, the base amount is computed as follows: 32.65 hours x $65 = $2,122.25. Furthermore, since this is not a case where the success achieved was “exceptional” or the risk extraordinary, see Blum v. Stenson, supra, plaintiff's counsel is not entitled to an enhancement award. Nor are there present any cost-of-living or special factors under the EAJA which would entitle plaintiff to an increased award. See 28 U.S.C. § 2412(d)(2)(A)(ii). It is therefore ORDERED that: 1. The reasonable value of the services rendered by plaintiff’s counsel properly taxable under the Equal Access to Justice Act is $2,122.25, which sum shall be paid by the United States directly to counsel for the claimant; and 2. This amount shall constitute counsel’s full and only fee for representing the plaintiff in the district court in this action. This order does not preclude counsel from receiving an additional fee from the defendant for her services at the administrative level. 42 U.S.C. § 406(b)(1). SO ORDERED. . Defendant concedes plaintiff was the prevailing party and that she qualifies for relief in terms of her financial means. The only issue before the court is whether defendant’s position was substantially justified. The newly enacted 28 U.S.C. § 2412(d)(2)(D) provides: ”... ‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based____” See Holden v. Heckler, 615 F.Supp. 686, 687-89 (N.D.Ohio 1985). ." }, { "docid": "5156854", "title": "", "text": "and the government must fail to meet its burden of showing that its position was substantially justified. It is well established that the EAJA applies to suits in federal court against the Secretary of Health and Human Services by plaintiffs who have unsuccessfully pressed disability claims at the administrative level. Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir.1983). The EAJA, however, does not apply to administrative proceedings within the Social Security Administration, either before or after action in federal court. Rather, attorneys’ fees for work done at the administrative level are limited to 25% of the past due benefits collected and are paid out of funds that would otherwise go to the client. 42 U.S.C. § 406(b)(1). - The most difficult question in this case is whether plaintiff was a prevailing party. Some courts have awarded attorneys’ fees to plaintiffs who secure a remand. See e.g., Sizemore v. Heckler, 608 F.Supp. 911 (N.D.Ill.1985); Burt v. Heckler, 593 F.Supp. 1125 (D.N.J.1984); Coffman v. Heckler, 580 F.Supp. 67 (N.D.Calif., 1984); Knox v. Schweiker, 567 F.Supp. 959 (D.Del.1983); Ceglia v. Schweiker, 566 F.Supp. 118 (E.D.N.Y.1983); Gross v. Schweiker, 563 F.Supp. 260 (N.D.Ind.1983). Other courts, however, including three circuit courts, have held that a plaintiff is not a prevailing party simply by obtaining a remand. See e.g. Cook v. Heckler, 751 F.2d 240 (8th Cir.1984); Brown v. Secretary of Health and Human Services, 747 F.2d 878 (3d Cir.1984); McGill v. Secretary of Health and Human Services, 712 F.2d 28 (2d Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). See also Steffens v. Heckler, 602 F.Supp. 754 (N.D.Ill. 1985). This court adopts the former approach for a remand which is based upon a decision rejecting the Secretary’s rebuttal to a prima facie entitlement to benefits. Congress intended that the definition of “prevailing party” under the EAJA be consistent with the definition of the term under existing fee-shifting statutes. H.R.Rep. No. 1418, 96th Cong., 2d Sess., reprinted in 1980 U.S.Code Cong & Ad. News 4953. A party need not litigate a case to final judgment in order to be a" }, { "docid": "12675072", "title": "", "text": "there present any cost-of-living or special factors under the EAJA which would entitle plaintiff to an increased award. See 28 U.S.C. § 2412(d)(2)(A)(ii). It is therefore ORDERED that: 1. The reasonable value of the services rendered by plaintiff’s counsel properly taxable under the Equal Access to Justice Act is $1,505.00, which sum shall be paid by the United States directly to counsel for the claimant; and 2. This amount shall constitute counsel’s full and only fee for representing the plaintiff in the district court in this action. This order does not preclude counsel from receiving an additional fee from the defendant for his services at the administrative level. 42 U.S.C. § 406(b)(1). SO ORDERED. . The newly enacted 28 U.S.C. § 2412(d)(2)(D) provides: \"... ‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based;....” See Holden v. Heckler, 615 F.Supp. 686, 687-89 (N.D.Ohio 1985). . A brief review of the record indicates the Secretary’s concession to plaintiffs motion is justified since at both the administrative and judicial levels, the defendant failed to credit uncontradicted testimony of disability from the plaintiff, her previous employer and her treating physician. . The court notes that the rate schedules reflected in the survey are simply for \"typical’’ work conducted by attorneys in North Carolina, based on their geographic location, firm size and date of admission to the bar, and do not account for the type of work performed or the skill required to perform it. . Plaintiffs motion for an award of fees by this court for work at the administrative level is DENIED. That decision must be made by the defendant." }, { "docid": "23550288", "title": "", "text": "of that ruling, at least with respect to the claims for benefits from January, 1980 to January, 1983. The ruling also applied, however, to Coup’s successful recovery of benefits for the twelve months thereafter. Thus we must address it. The district court’s discussion of Coup’s motion for a fee award is cryptic: The government opposes this motion arguing that the Government’s position in defending this case was substantially justified. The Government carefully distinguishes between the reversal of a decision by the Secretary which is not based on substantial evidence of record, and an award of attorneys fees under EAJA because the Government’s position in defending the Secretary’s decision lacks substantial justification. After a careful review of the arguments, we cannot find that the Government’s position in this action warrants an award of fees under EAJA. Therefore we DENY plaintiffs Motion for Attorney’s Fees under EAJA. To the extent that the quoted language suggests that the court need only evaluate the justification for the government’s litigation position, it is clear error. The statute defines the “position of the United States” to mean, “in addition to the position taken by the United States in the civil action, the action or failure to act . by the agency upon • which the civil action is based....” 28 U.S.C. § 2412(d)(2)(D) (Supp. III. 1985). Thus the court was required to evaluate both the justification for the agency’s denial of benefits, including retroactive benefits, and the justification of its resistance, in litigation, to Coup’s complaint and his motion to enforce the judgment. As the quoted ruling discloses, the district court did no more than evaluate the legal arguments asserted in court on behalf of the Secretary. Our review of the district court’s denial of attorneys fees under the Equal Access to Justice Act is plenary. Stokes v. Bowen, 811 F.2d 814, 816 (3d Cir.1987); Washington v. Heckler, 756 F.2d 959, 963 (3d Cir.1985). Thus the fact that'the district court failed to evaluate the government’s legal position at the agency level, or its factual position at either level, does not affect our review. As we noted" }, { "docid": "22409774", "title": "", "text": "a final decision from the Secretary prior to December 1, 1984. McDonald v. Heckler, 629 F.Supp. 1138, 1139-40 (D.Mass.1986). We shall consider the Step 2 regulation and the combination requirement in turn. II. THE SEVERITY REGULATION The Step 2 “severity” test has been a controversial aspect of the sequential evaluation process promulgated in 1978. The Secretary describes it as follows: (c) You must have a severe impairment. If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work ex-perience____[ ] 20 C.F.R. § 404.1520(c) (1986). Critics contend that the application of this regulation has improperly and unfairly increased the number of claimants who are denied benefits based entirely on the purported medical non-severity of their impairment, without any consideration of the effect of the impairment on their ability to perform gainful activity. To date, ten courts of appeals other than our own have addressed the validity of the Step 2 regulation. Five have held the regulation invalid on its face, on the ground that the Social Security Act does not permit a finding of non-disability based on medical factors alone, without consideration of vocational factors. Baeder v. Heckler, 768 F.2d 547 (3d Cir.1985); Johnson v. Heckler, 769 F.2d 1202, reh’g denied by an equally divided court, 776 F.2d 166 (7th Cir.1985); Brown v. Heckler, 786 F.2d 870 (8th Cir.1986); Yuckert v. Heckler, 774 F.2d 1365 (9th Cir.1985), cert. granted, — U.S. —, 106 S.Ct. 1967, 90 L.Ed.2d 652 (1986); Hansen v. Heckler, 783 F.2d 170 (10th Cir.1986). The five remaining courts have upheld the regulation, but only if applied as a de minimis policy designed to screen out totally frivolous claims. Chico v. Schweiker, 710 F.2d 947, 954-55 n. 10 (2d Cir.1983); Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984); Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985); Farris v. Secretary of Health and Human Services, 773 F.2d 85 (6th Cir.1985); Brady v. Heckler, 724" }, { "docid": "12595232", "title": "", "text": "his services at the administrative level. 42 U.S.C. § 406(b)(1). SO ORDERED. . The newly enacted 28 U.S.C. § 2412(b)(2)(D) provides: \"... 'position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based____\" See Holden v. Heckler, 615 F.Supp. 686, 687-89 (N.D.Ohio 1985). . The court notes that the rate schedules reflected in the survey are simply for \"typical” work conducted by attorneys in North Carolina, based on their geographic location, firm size and date of admission to the bar, and do not account for the type of work performed or the skill required to perform it. . On February 20, 1986, plaintiff also filed a motion for attorney’s fees under the Act. To the extent plaintiffs counsel requests compensation for her time before this court, the motion is DENIED. Counsel may not receive compensation under both the EAJA and the Act; furthermore, the award under the EAJA adequately compensates counsel for her time before this court. To the extent counsel’s motion is for an award of fees by this court for work at the administrative level, counsel’s request is also DENIED. That decision must be made by the defendant." }, { "docid": "1843945", "title": "", "text": "Gam-ber’s complaints of back injury and pain, and (3) failed to explain fully to Gamber his right to counsel. On remand Gamber was granted benefits. Gamber then sought attorney fees under the Act. The district court denied them, holding that the Secretary’s position was substantially justified and Gamber appeals. ANALYSIS The EAJA provides that the court may grant attorney’s fees if it finds first, that the claimant prevailed in the litigation, and second, that the government was not substantially justified in its position and no special circumstances make a fee award unjust. 28 U.S.C. § 2412(d)(1)(A). The position of the United States means the position taken by it in the civil action, and also the action, or failure to act by the agency upon which the civil action is based. 28 U.S.C. § 2412 (d)(2)(D). We review the denial of an award under the Act for abuse of discretion. Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir.1986); United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1318 (8th Cir.1986). Conclusions of law are reviewed de novo; findings of fact are reviewed for clear error. United States v. Estridge, 797 F.2d 1454, 1457 (8th Cir.1986). Although remand for further administrative consideration was not sufficient to make Gamber the prevailing party, receipt of benefits following the remand indicates that he prevailed. See Kemp v. Heckler, 777 F.2d 414, 414 (8th Cir.1985); Cook v. Heckler, 751 F.2d 240, 241 (8th Cir.1984). The government does not contest Gamber’s status as prevailing party. The government bears the burden of proving substantial justification. Wheat v. Heckler, 763 F.2d 1025, 1028-29 (8th Cir.1985). This requires that it show more than mere reasonableness. 1,378.65 Acres of Land, 794 F.2d at 1317-18. It must demonstrate that its position was clearly reasonable, well-founded in law and fact, and solid though not necessarily correct. Jackson, 807 F.2d at 128; 1,378.65 Acres of Land, 794 F.2d at 1318. The district court concluded that the Secretary’s position was supported by the AU’s decision. It held that the agency’s determination was reasonably based on the evidence as the case progressed. Contending that" }, { "docid": "12833920", "title": "", "text": "§ 404.1520(c) (1986), is inconsistent with the Social Security Act’s assignment of burdens of proof and therefore invalid. Id. 107 S.Ct. at 2292-93. The Court read the relevant provision of the Act, 42 U.S.C. § 423(d)(2)(A) (1982 & Supp. III 1985), as limiting the Secretary’s authority to grant benefits, but not to deny them. “If a claimant is unable to show that he has a medically severe impairment, he is not eligible for disability benefits. In such a case, there is no reason for the Secretary to consider the claimant’s age, education, and work experience.” Id. 107 S.Ct. at 2294. The court went on to find that the legislative history of section 423(d)(2)(A) supports the Secretary’s authority to create step two, and that section 4 of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1800, approved step two. This court’s decision granting plaintiffs a preliminary injunction rested squarely on the Third Circuit’s decision in Baeder v. Heckler, 768 F.2d 547 (3d Cir.1985). See Wilson v. Heckler, 622 F.Supp. 649, 652-54 (D.N.J.1985). The Baeder court held step two of the Secretary’s sequential evaluation process invalid as contravening the Social Security Act by allowing the Secretary to consider only medical and not vocational factors. 768 F.2d at 553. This court granted injunctive relief because the Secretary refused to be bound by the Baeder holding. See Wilson, 622 F.Supp. at 655 (“[T]he court finds that the new SSR [85— 28] represents a policy of constructive nonacquiescence and agrees with plaintiffs that preliminary injunctive relief is strongly warranted.”). In essence, the court ordered the Secretary to obey the law of the Third Circuit. However, Yuckert overturned Baeder. See Baeder v. Heckler, 826 F.2d 1345, 1346 (3d Cir.1987) (“[T]he Supreme Court made clear that our decision in Baeder was incorrect.”). Because Baeder was the underpinning of this court’s 1985 preliminary injunction, the injunction can no longer stand unless there is some independent basis for it. B. The Secretary’s Motion to Dismiss The Secretary argues that the court should not reach plaintiffs’ alternative arguments for continuing the preliminary injunction but" }, { "docid": "12595231", "title": "", "text": "rate for this case. The nature and quality of the work involved, as well as counsel’s experience, simply does not merit the maximum EAJA hourly rate. Accordingly, the base amount is computed as follows: 37.00 hours X $65 = $2,405.00. Furthermore, since this is not a case where the success achieved was “exceptional” or the risk extraordinary, See Blum v. Stenson, supra, plaintiff’s counsel is not entitled to an enhancement award. Nor are there present any cost-of-living or special factors under the EAJA which would entitle plaintiff to an increased award. See 28 U.S.C. § 2412(d)(2)(A)(ii). It is therefore ORDERED that: 1. The reasonable value of the services rendered by plaintiff’s counsel properly taxable under the Equal Access to Justice Act is $2,405.00, which sum shall be paid by the United States directly to counsel for the claimant; and 2. This amount shall constitute counsel’s full and only fee for representing the plaintiff in the district court in this action. This order does not preclude counsel from receiving an additional fee from the defendant for his services at the administrative level. 42 U.S.C. § 406(b)(1). SO ORDERED. . The newly enacted 28 U.S.C. § 2412(b)(2)(D) provides: \"... 'position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based____\" See Holden v. Heckler, 615 F.Supp. 686, 687-89 (N.D.Ohio 1985). . The court notes that the rate schedules reflected in the survey are simply for \"typical” work conducted by attorneys in North Carolina, based on their geographic location, firm size and date of admission to the bar, and do not account for the type of work performed or the skill required to perform it. . On February 20, 1986, plaintiff also filed a motion for attorney’s fees under the Act. To the extent plaintiffs counsel requests compensation for her time before this court, the motion is DENIED. Counsel may not receive compensation under both the EAJA and the Act; furthermore, the award under the EAJA adequately compensates" }, { "docid": "5156853", "title": "", "text": "MEMORANDUM AND ORDER MORAN, District Judge. Plaintiff applied for disability benefits on October 31, 1980. His application was rejected at the administrative level. On September 26, 1984 this court reversed the decision of the Secretary of Health and Human Services and remanded the case to the Secretary because of two substantial errors made by the Administrative Law Judge (AU) in evaluating plaintiffs case. Plaintiff has now petitioned for $2,113.25 in attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The EAJA provides that “a court shall award to a prevailing party other than the United States” reasonable attorneys’ fees and expenses, in addition to costs, “incurred by that party in any civil action ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances made an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Thus, in order to recover attorneys’ fees and costs, plaintiff must be the prevailing party and the government must fail to meet its burden of showing that its position was substantially justified. It is well established that the EAJA applies to suits in federal court against the Secretary of Health and Human Services by plaintiffs who have unsuccessfully pressed disability claims at the administrative level. Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir.1983). The EAJA, however, does not apply to administrative proceedings within the Social Security Administration, either before or after action in federal court. Rather, attorneys’ fees for work done at the administrative level are limited to 25% of the past due benefits collected and are paid out of funds that would otherwise go to the client. 42 U.S.C. § 406(b)(1). - The most difficult question in this case is whether plaintiff was a prevailing party. Some courts have awarded attorneys’ fees to plaintiffs who secure a remand. See e.g., Sizemore v. Heckler, 608 F.Supp. 911 (N.D.Ill.1985); Burt v. Heckler, 593 F.Supp. 1125 (D.N.J.1984); Coffman v. Heckler, 580 F.Supp. 67 (N.D.Calif., 1984); Knox v. Schweiker, 567 F.Supp. 959" }, { "docid": "816870", "title": "", "text": "is an action appealing a finding of no severe impairment pursuant to § 404.1520(c) without the necessary consideration of vocational factors must also be remanded for adjudication in accordance with the Baeder decision. Similarly, Mr. Katz represents that the Secretary is promulgating new regulations to comply with the requirements of Baeder. Plaintiff’s motion for an award of attorney’s fees is brought under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), as amended and approved on August 5, 1985. According to the EAJA, [e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (emphasis added). It is well settled in this Circuit that the EAJA applies to judicial review of actions brought pursuant to the Social Security Act, 42 U.S.C. § 405(g). Brown v. Secretary of Health and Human Services, 747 F.2d 878, 880 (3d Cir.1984). A social security claimant, like any other EAJA claimant, must demonstrate that the two statutory prerequisites to an EAJA award have been met. First, the court must be able to conclude that the claimant was a “prevailing party.” Second, after the claimant has “prevailed,” the court must find that the position of the Government was not substantially justified, and that no special circumstances render an award unjust. Tressler v. Heckler, 748 F.2d 146, 149 (3d Cir.1984). I. “PREVAILING PARTY” Plaintiff Baeder and the Secretary are in sharp disagreement over the question of whether Baeder qualifies as a “prevailing party” for purposes of the EAJA. At the heart of their debate is the effect of the Third Circuit’s opinion in Brown, supra, on the fee application at" }, { "docid": "12595230", "title": "", "text": "Suit Arose. To the extent this factor is applicable to social security actions, representation is not undesirable within this community. 10. The Nature and Length of the Professional Relationship Between Attorney and Client. This is not relevant to this case and thus does not require adjustment of the fee. 11. Attorney’s Fee Awards in Similar Cases. Premised on awards in similar cases, the court finds the rate of $65-$75 per hour to be reasonable and in line with awards in those cases. See, Shumate v. Harris, 544 F.Supp. 779 (W.D.N.C.1982); Ocascio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y.1982); Ex parte Duggan, 537 F.Supp. 1198 (D.S.C.1982). In addition, this range is consistent with awards in other cases in the Eastern District of North Carolina. See, e.g., Butler v. Heckler, 639 F.Supp. 14 (1985); Jones v. Heckler, No. 83-41-CIV-7 (September 28, 1984) [Available on WESTLAW, DCTU database]; Cain v. Heckler, No. 81-85-CIV-3 (May 3, 1984) [Available on WESTLAW, DCTU database]. Upon a review of the above factors, the court concludes that $65.00 per hour is the appropriate hourly rate for this case. The nature and quality of the work involved, as well as counsel’s experience, simply does not merit the maximum EAJA hourly rate. Accordingly, the base amount is computed as follows: 37.00 hours X $65 = $2,405.00. Furthermore, since this is not a case where the success achieved was “exceptional” or the risk extraordinary, See Blum v. Stenson, supra, plaintiff’s counsel is not entitled to an enhancement award. Nor are there present any cost-of-living or special factors under the EAJA which would entitle plaintiff to an increased award. See 28 U.S.C. § 2412(d)(2)(A)(ii). It is therefore ORDERED that: 1. The reasonable value of the services rendered by plaintiff’s counsel properly taxable under the Equal Access to Justice Act is $2,405.00, which sum shall be paid by the United States directly to counsel for the claimant; and 2. This amount shall constitute counsel’s full and only fee for representing the plaintiff in the district court in this action. This order does not preclude counsel from receiving an additional fee from the defendant for" }, { "docid": "20356224", "title": "", "text": "certainly not be the last, to address the question of whether the Secretary’s step two severity test is consistent with the Act. Several courts of appeal have already found the step two regulation either invalid on its face or as applied by the Secretary. See, e.g., Johnson v. Heckler, 7th Cir.1985, 769 F.2d 1202; Yuckert v. Heckler, 9th Cir.1985, 774 F.2d 1365; Baeder v. Heckler, 3rd Cir.1985, 768 F.2d 547. Also, two other courts of appeal have cases similar to the one at bar pending before them. See, Smith v. Heckler, E.D.Cal.1984, 595 F.Supp. 1173; Dixon v. Heckler, S.D.N.Y. 1984, 589 F.Supp. 1494. In resolving the issues presented in the instant action, the court relies principally on the well-reasoned opinion of the 7th Circuit in Johnson v. Heckler, 7th Cir.1985, 769 F.2d 1202. The analysis is persuasive and, in our view, correct. It is thus somewhat disconcerting that the Secretary continues to enforce vigorously the step two regulation after its express invalidation by the Johnson court. Turning to plaintiffs’ motion for summary judgment, their first claim is that the step two regulation as written violates the definition of disability contained in the Act. 42 U.S.C. § 423(d)(1)(A) and (d)(2)(A). In plaintiffs’ view, the statutory definition of disability expressly links the concept of severity to functional limitations and voca- ' tional considerations, not simply to medical diagnosis. In defense of the regulation, the Secretary contends that the legislative history and the language of the Act, particularly § 423(d)(2)(A), reflect the underlying premise of Congress that some impairments are so slight as to justify an immediate conclusion based on medical evidence alone that they could never prevent a claimant from working. The Secretary seeks to characterize the step two regulation not as an independent test of eligibility, but rather as a de minimis test for screening out frivolous claims. Although questions of statutory interpretation are often close, the court is persuaded that the Secretary’s interpretation of the statutory definition of disability is erroneous. Nothing in the language or legislative history of the Act or its subsequent amendments indicates that Congress intended for" }, { "docid": "12288021", "title": "", "text": "1. The reasonable value of the services rendered by plaintiff’s counsel properly taxable under the Equal Access to Justice Act is $2,122.25, which sum shall be paid by the United States directly to counsel for the claimant; and 2. This amount shall constitute counsel’s full and only fee for representing the plaintiff in the district court in this action. This order does not preclude counsel from receiving an additional fee from the defendant for her services at the administrative level. 42 U.S.C. § 406(b)(1). SO ORDERED. . Defendant concedes plaintiff was the prevailing party and that she qualifies for relief in terms of her financial means. The only issue before the court is whether defendant’s position was substantially justified. The newly enacted 28 U.S.C. § 2412(d)(2)(D) provides: ”... ‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based____” See Holden v. Heckler, 615 F.Supp. 686, 687-89 (N.D.Ohio 1985). . It is important to note that the government is not arguing it ever conceded the merit of plaintiff’s position. To the contrary, defendant’s most recent response clearly is premised upon the view that the Secretary’s position opposing Thornton was substantially justified, a position not timely advanced before this court. However, even if the defendant could make a case for “conciliatory litigation demeanor,\" see Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984), in the sense that it never actively opposed plaintiff’s position, that argument would not relieve defendant from the imposition of an EAJA fees award in this action. First, under the facts of this case the contention is without support since defendant’s answer clearly contests the substance of plaintiffs position. Second, the fact that defendant never filed a motion or brief in opposition to plaintiffs motion is not tantamount to the defendant moving to remand, confessing judgment or stipulating to plaintiffs position. Plaintiff was forced to litigate the case to its conclusion and defendant’s position or lack thereof was not justifiable. ”[I]t is incumbent" }, { "docid": "12675071", "title": "", "text": "per hour to be reasonable and in line with awards in those cases. See, Shumate v. Harris, 544 F.Supp. 779 (W.D.N.C.1982); Ocascio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y. 1982); Ex parte Duggan, 537 F.Supp. 1198 (D.S.C.1982). In addition, this range is consistent with awards in other cases in the Eastern District of North Carolina. See, e.g., Butler v. Heckler, 639 F.Supp. 14 (1985); Jones v. Heckler, No. 83-41-CIV-7 (September 28, 1984) [Available on WEST-LAW, DCTU database]; Cain v. Heckler, No. 81-85-CIV-3 (May 3, 1984) [Available on WESTLAW, DCTU database]. Upon a review of the above factors, the court concludes that $70.00 per hour is the appropriate hourly rate for this case. The nature and quality of the work involved simply does not merit the maximum EAJA hourly rate. Accordingly, the base amount is computed as follows: 21.50 hours X $70 = $1,505.00. Furthermore, since this is not a case where the success achieved was “exceptional” or the risk extraordinary, See Blum v. Stenson, supra, plaintiff’s counsel is not entitled to an enhancement award. Nor are there present any cost-of-living or special factors under the EAJA which would entitle plaintiff to an increased award. See 28 U.S.C. § 2412(d)(2)(A)(ii). It is therefore ORDERED that: 1. The reasonable value of the services rendered by plaintiff’s counsel properly taxable under the Equal Access to Justice Act is $1,505.00, which sum shall be paid by the United States directly to counsel for the claimant; and 2. This amount shall constitute counsel’s full and only fee for representing the plaintiff in the district court in this action. This order does not preclude counsel from receiving an additional fee from the defendant for his services at the administrative level. 42 U.S.C. § 406(b)(1). SO ORDERED. . The newly enacted 28 U.S.C. § 2412(d)(2)(D) provides: \"... ‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based;....” See Holden v. Heckler, 615 F.Supp. 686, 687-89 (N.D.Ohio 1985). . A brief review of" }, { "docid": "1173316", "title": "", "text": "OPINION OF THE COURT PER CURIAM. This is an appeal of a $12,480 award by the district court of attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (Supp.1987). Baeder v. Secretary of Health and Human Services, 634 F.Supp. 1041 (D.N.J.1986). The award followed a decision by this court that the Secretary’s duly promulgated “severity” regulation, 20 C.F.R. § 404.1520(c), was invalid because it was inconsistent with the Social Security Act. Baeder v. Heckler, 768 F.2d 547 (3d Cir.1985). The fee award was limited to counsel’s efforts for litigating the severity regulation. The district court, in awarding attorney fees, found: (1) that Baeder was a prevailing party on the issue of the validity of the severity regulation; (2) that the Secretary’s position in defending the validity of the regulation was not substantially justified; and (3) that special circumstances did not make an award of fees unjust. Baeder ultimately received benefits after his claim on the merits was remanded by the district court to the Secretary; hence, it is not contested that he is a prevailing party. Nor are “special circumstances” claimed. Accordingly, the issue before us is one of substantial justification. Under our jurisprudence, in order to defeat an application for counsel fees by a prevailing party the government must show: (1) a reasonable basis in truth for the facts alleged in its pleadings; (2) a reasonable basis in law for the theory which it propounds; and, (3) that the facts alleged reasonably support the legal theory advanced. Dougherty v. Lehman, 711 F.2d 555, 564 (3d Cir.1983). In recent weeks the Supreme Court made clear that our decision in Baeder was incorrect. See Bowen v. Yuckert, - U.S. -, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (upholding severity regulation as consistent with Social Security Act). In light of this decision, we conclude that the Secretary’s action in using the regulation generally and in defending it in the courts was substantially justified. Accord Mattson v. Bowen, 824 F.2d 655 (8th Cir.1987). Baeder argues that the Secretary’s position was not substantially justified because the Secretary failed to demonstrate" }, { "docid": "17073804", "title": "", "text": "MEMORANDUM OPINION AND ORDER ASPEN, District Judge: On October 21, 1985, this Court adopted the Report and Recommendation of Magistrate James T. Balog that plaintiff Roberts’ motion for summary judgment be granted and that she be awarded “Widow’s Benefits” under 42 U.S.C. § 423(d)(2)(B). She has moved for attorney’s fees, expenses and costs under the relevant section of the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412 (as amended in August 1985). For the reasons stated below, her motion is granted in part. 28 U.S.C. § 2412(d)(1)(A) commands the Court to award attorney’s fees to “a prevailing party” in a suit against the United States, “unless the court finds that the position of the United States was substantially justified.” This determination must be made on the basis of the administrative and court record. Section 2412(d)(1)(B) (as amended in 1985). “Position of the United States” means “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” Section 2412(d)(2)(D) (added in 1985). The United States’ position was “substantially justified” if it had a “reasonable basis in law and fact.” See, e.g., Ferrell v. Pierce, 743 F.2d 454, 466 (7th Cir.1984). The government’s position must have had a “solid though not necessarily correct basis in fact and law.” Gotches v. Heckler, 773 F.2d 108, 111 (7th Cir.1985), opinion amended and reh’g denied, 782 F.2d 765 (7th Cir.1986). The government bears the burden of proving that its position was substantially justified. See, e.g., Ferrell, 743 F.2d at 466. The parties agree about these standards but disagree about whether the government has met its burden. We hold it has not. This case was a routine judicial review of a denial of disability benefits. The Secretary had found Roberts eligible for Supplemental Security Income (“SSI”) benefits but not for “widow’s” benefits. To be entitled to the latter benefits, a claimant must show that the medical evidence proves that she has an impairment or combination of impairments which meets or equals the listing of impairments" }, { "docid": "23550289", "title": "", "text": "of the United States” to mean, “in addition to the position taken by the United States in the civil action, the action or failure to act . by the agency upon • which the civil action is based....” 28 U.S.C. § 2412(d)(2)(D) (Supp. III. 1985). Thus the court was required to evaluate both the justification for the agency’s denial of benefits, including retroactive benefits, and the justification of its resistance, in litigation, to Coup’s complaint and his motion to enforce the judgment. As the quoted ruling discloses, the district court did no more than evaluate the legal arguments asserted in court on behalf of the Secretary. Our review of the district court’s denial of attorneys fees under the Equal Access to Justice Act is plenary. Stokes v. Bowen, 811 F.2d 814, 816 (3d Cir.1987); Washington v. Heckler, 756 F.2d 959, 963 (3d Cir.1985). Thus the fact that'the district court failed to evaluate the government’s legal position at the agency level, or its factual position at either level, does not affect our review. As we noted in Stokes v. Bowen, “Substantial justification ‘constitute^] a middle ground between an automatic award of fees to a prevailing party and an award made only when the government’s position was frivolous.’ ” Washington v. Heckler, 756 F.2d 959, 961 (3d Cir.1985) (quoting Dougherty v. Lehman, 711 F.2d 555, 563 (3d Cir.1983)). The burden of proving substantial justification is on the government. 756 F.2d at 961. To carry his burden, the Secretary must demonstrate “(1) a reasonable basis in truth for the facts alleged;, (2) a reasonable basis in law for the theory [he] propounds; and (3) a reasonable connection between the facts alleged and the legal theory advanced.” Id. (citing Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 598 (3d Cir. 1984); Dougherty, 711 F.2d at 564). 811 F.2d at 816. Thus the government’s burden involves both a legal and a factual component. Moreover, “for the government, in relying entirely on a legal argument, to establish that its position was substantially justified, it must demonstrate that that argument presented an unsettled or close" }, { "docid": "3238878", "title": "", "text": "ORDER Before LOGAN and SEYMOUR, Circuit Judges, and BROWN, Senior District Judge. WESLEY E. BROWN, Senior District Judge. In Kemp v. Bowen, 816 F.2d 1469 (10th Cir., 1987), after determining that the Secretary’s finding that Mrs. Kemp was not entitled to social security disability benefits was not supported by substantial evidence, we found that she was entitled to such benefits by reason of her disabilities, and the case was remanded for an immediate award of benefits from September 1, 1983. Mrs. Kemp’s attorneys, Eric Melders and Jack Gray, have now filed a Motion for Award of Attorney’s Fees and Costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (1982) (as amended by Act of August 5, 1985, Pub.L. No. 99-80, Sec. 2, 99 Stat. 183, 184), and a separate Motion to Remand this case for the purpose of calculating attorney’s fees under the Social Security Act, 42 U.S.C. Sec. 406(b)(1). The Secretary opposes an award of fees under the Equal Access to Justice Act upon the ground that the government’s position was substantially justified — and in the alternative — the government claims that the amount of fees requested by counsel is excessive. Criteria for the award of fees under 28 U.S.C. Sec. 2412 were recently discussed by Judge Seymour of this panel in Fulton v. Heckler, 784 F.2d 348 (10th Cir.1986), where it was noted that an allowance of fees under the Equal Access to Justice Act was to be made “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. Sec. 2412(d)(1)(A). In the Tenth Circuit, “the test for substantial justification is essentially one of ‘reasonableness in both law and fact.’ ...” (citations omitted), and we noted that the Act further provides that the “ ‘position of the United States’ means, in addition to the position taken by the United States in the civil action, the action ... by the agency upon which the civil action is based.’ 28 U.S.C. Sec. 2412(d)(2)”. Fulton v. Heckler, supra, 784 F.2d at 349." }, { "docid": "2838864", "title": "", "text": "of symmetry” between the Secretary’s severity regulation and the provisions of the Social Security Act. Key v. Heckler, 754 F.2d 1545, 1552 (9th Cir.1985); Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir.1983). Although we have previously declined to rule on the validity of the sequential procedure, we now find, along with the Third and Seventh Circuits, that the regulation violates the Act because it does not permit the individualized assessment of disability required by the Act. See Johnson v. Heckler, 769 F.2d 1202, 1210-13 (7th Cir.1985); Baeder v. Heckler, 768 F.2d 547, 551-53 (3d Cir.1985); Dixon v. Heckler, 589 F.Supp. 1494, 1502-06 (S.D.N.Y.1984). See also Heckler v. Campbell, 461 U.S. at 467, 103 S.Ct. at 1958 (discussing the statutory scheme for individualized determinations). First, as we have noted, the regulation, on its face, conflicts with the language of the statute that requires the Secretary, in determining disability, to consider factors such as age, education, work experience, and ability to do past work. 42 U.S.C. § 423(d)(2)(A). See Delgado, 722 F.2d at 574; Johnson, 769 F.2d at 1212; Baeder, 768 F.2d at 551. We find the Secretary’s argument that the regulation is not inconsistent with this language or the statutory purpose belied by the express statutory requirement that both medical and vocational factors be considered in determining disability. Second, we reject the Secretary’s contention that the legislative history of the Act, particularly the 1984 Amendment, supports the sequential evaluation process. Although Congress apparently considered the severity regulation when enacting the 1984 Amendment, we agree with the Seventh Circuit that Congress did not endorse the Secretary’s application of the regulation. See Johnson, 769 F.2d at 1211-12. Rather, Congress was “concerned” that the Secretary was not “using criteria that clearly reflect the intent of Congress that all those who are unable to work receive benefits.” H.R.Rep. No. 618, 98th Cong., 2d Sess. 7, reprinted in 1984 U.S.Code Cong. & Ad. News 3038, 3044-45. Although failing to eliminate the “severe impairment” requirement in the regulation, Congress urged the Secretary to revise her criteria “to reflect the real impact of impairments on the ability" } ]

[ { "docid": "22437743", "title": "", "text": "revealed a packet of bindle bags underneath the driver’s seat, a banana clip of .22 caliber shells on the console, and financial records. Upon viewing its contents, the backup officer decided to search the trunk at the police station. The officer continued searching the passenger compartment and found a knife between the seats and a loaded .44 magnum revolver on the console. At the police station, officers recovered several additional weapons, narcotics, digital scales, ammunition, drug dealing records, a police scanner, and used and unused syringes. Mr. Hunnicutt appeals the denial of his suppression motion, arguing that (1) the initial stop was unjustified, (2) further questioning about guns and drugs was unsupported by reasonable suspicion, (3) the canine sniff was beyond the scope of the stop, (4) the canine sniff was outside the purposes of a search incident to arrest, (5) his refusal to consent to a search should not have been considered in determining reasonable suspicion or probable cause, (6) impoundment was improper, and (7) any inventory search was not done pursuant to standardized procedures. Discussion When reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. See United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir. 1995), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). Judging the credibility of the witnesses, determining the weight to be given to evidence, and drawing reasonable inferences and conclusions from the evidence are within the province of the district court. See Villa-Chaparro, 115 F.3d at 801. On appeal of a denial of a suppression motion, we consider the totality of the circumstances and view the evidence in the light most favorable to the government. Villar-Chaparro, 115 F.3d at 800-01. The ultimate determination of reasonableness under the Fourth Amendment is a question of law which we review de novo. See id. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. TV. A traffic stop is a “seizure” within" } ]

[ { "docid": "6695515", "title": "", "text": "suppress the 1000 grams of cocaine found under the motel room mattress. Defendant argues that his request to the police to retrieve his money “on the bed” or “at the bed” was consent to search a limited area, and the police decision to search under the mattress by raising it exceeded the scope of defendant’s consent. We disagree. The question of whether a search remained within the boundaries of the consent given is essentially factual, to be determined from the totality of the circumstances. United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986). We accept the trial court’s findings unless clearly erroneous. Id. The district court found: “the search under the mattress was within the permissible scope of defendant’s consent. Consent to a search to retrieve money from the bed would reasonably include a search underneath the mattress when the officers did not find the money on the bed. It was reasonable for the officers to assume that a large sum of money could have been placed under the mattress. Because the scope of the search was limited to the bed itself, it is reasonable to conclude that the scope of the actual consent was not exceeded.” I R. tab 30 at 4. We do not find this clearly erroneous. III Defendant next asserts that his conviction under 21 U.S.C. § 841(a) for possession of cocaine with intent to distribute is invalid, in that the evidence was insufficient to show specifically that he possessed, with knowledge and the intent to distribute, the 1000 grams of cocaine found in the motel room. Our standard for reviewing the sufficiency of evidence on criminal convictions is whether “[t]he evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). Evidence supporting the conviction “must be ‘substantial; that is, it must" }, { "docid": "17202410", "title": "", "text": "admitted on cross-examination, however, that he had understood Officer Heim’s request for his name and identification, as well as his question regarding ownership of the vehicle. The district court denied the motion to suppress. Important to this appeal are the following aspects of the district court’s conclusion: (1) the court specifically found the testimony of Officer Heim relating to the purpose of the stop to be credible; (2) the court found that Officer Heim had reasonable suspicion to detain the Appellant and Galindo-Diaz to ask about narcotics based upon their conflicting answers to the officer’s questions and Galindo-Diaz’s lack of a valid driver’s license; and (3) the court stated that Appellant understood enough English to consent voluntarily to the search. DISCUSSION I. Standard of Review “In reviewing the denial of a motion to suppress, we must accept the district court’s factual findings unless clearly erroneous and we view the evidence in the light most favorable to the prevailing party.” United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir.1999). The ultimate determination of the reasonableness of a warrantless search or seizure under the Fourth Amendment is a determination of law that we review de novo. See United States v. Pena, 920 F.2d 1509, 1513-14 (10th Cir.1990). II. Analysis A. The initial traffic stop was supported by probable cause The first question we must address is whether the initial seizure of the vehicle was supported by probable cause. The government bears the burden of proof to justify warrantless searches and seizures. See United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir.1993). The standard of proof imposed upon the party who carries the burden, in this case the government, is a preponderance of evidence. See United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the detention is brief. See United States v. Gregory, 79 F.3d 973, 977 (10th Cir.1996); see also Delaware v. Prouse, 440 U.S. 648, 653," }, { "docid": "23110027", "title": "", "text": "attended an elementary education course conducted in English while incarcerated in a federal penitentiary. The district court found that Pena clearly and unequivocally consented to the search of his vehicle. The court did so even though Pena testified at the suppression hearing that he had no understanding of the English language. Assessment of the credibility of witnesses is the prerogative of the trial court, not an appellate court, which neither sees nor hears the witnesses. United States v. Obregon, 748 F.2d 1371, 1377 (10th Cir.1984). Thus, viewing the evidence in the light most favorable to the government, United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985), we cannot say the trial court was clearly in error in this finding, United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984). III. The first issue on appeal is whether the trial court erred in failing to suppress evidence because Pena’s detention following the initial stop for speeding was unreasonable under the Fourth Amendment and tainted his consent to search. In reviewing denial of a motion to suppress we accept the trial court’s findings of fact unless they are clearly erroneous. Id. Additionally, we must view the evidence on appeal in the light most favorable to the government. Lopez, 777 F.2d at 548. The ultimate de termination of reasonableness, however, is a conclusion of law that we review de novo. United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989). The Fourth Amendment protects against unreasonable searches and seizures. United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.1986). In determining the reasonableness of a search and seizure, the court employs a dual inquiry: 1) whether an officer’s action was justified at its inception; and 2) whether the action was reasonably related in scope to the circumstances that first justified the interference. United States v. Guzman, 864 F.2d 1512, 1518 (10th Cir.1988) (quoting Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968)). This inquiry utilizes an objective analysis of the facts and circumstances. See" }, { "docid": "15216870", "title": "", "text": "unlock the back of the Blazer. Once the hatchback was open, Phillips found two large suitcases and asked Ringold if he could look inside them. One of the suitcases was locked, and when Ringold indicated that he did not have a key Phillips asked if he could break the lock. Ringold said “yes.” When Phillips cut the lock and opened the suitcase he found a large bale of marijuana inside. Further searching revealed three more large bales of marijuana. After the ensuing criminal charges were brought against both defendants, each moved to suppress the evidence of the marijuana. Denying that motion, the district court found that Phillips’ encounter with defendants did not amount to a seizure and that they had voluntarily consented to the search of the Blazer. Defendants appeal that ruling. Standard of Review In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the district court’s determination (United States v. Williams, 271 F.3d 1262, 1266 (10th Cir.2001)). To that end we will uphold the district court’s factual findings unless they are clearly erroneous (id.). By contrast, the ultimate determination of whether the police action at issue was reasonable under the Fourth Amendment is a question of law that we review de novo (id.). Although the proponent of a motion to suppress bears the burden of proof in general terms (United States v. Moore, 22 F.3d 241, 243 (10th Cir.1994), citing Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)), whenever the government relies on a defendant’s consent to validate a search it bears the burden of proving the consent valid (United States v. Pena, 143 F.3d 1363, 1366 (10th Cir.1998)). Voluntariness of the Encounter As United States v. Torres-Guevara, 147 F.3d 1261, 1264 (10th Cir.1998)(internal quotation marks and citation omitted) has recounted: This court has previously identified three categories of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable" }, { "docid": "18341150", "title": "", "text": "Fourth Amendment; (3) the officers’ manipulation and search of the duffle bags was unreasonable; and finally, Mr. Romero contends (4) the district court erred when it found that the purported traffic violation of “following too closely,” under Kan. Stat. Ann. § 8 — 1523(a), occurred. 1. The Reasonableness of Mr. Worthon’s Stop A. Standard of review In reviewing the district court’s denial of a motion to suppress, we review the court’s factual findings for clear error and view the evidence in the light most favorable to the government. See United States v. Patterson, 472 F.3d 767, 775 (10th Cir.2006). We review de novo the reasonableness of a search or seizure under the Fourth Amendment. United States v. Lyons, 510 F.3d 1225, 1234 (10th Cir.2007). The credibility of witnesses, the weight accorded to evidence, and the reasonable inferences drawn therefrom fall within the province of the district court. United States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir.2004). “Finally, whether a defendant has standing to challenge a search is ... subject to de novo review.” United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.2000) (internal quotation marks omitted). B. Standing (i) Mr. Worthon Mr. Worthon has standing to challenge the lawfulness of his own detention. See Nava-Ramirez, 210 F.3d at 1131 (“This court has repeatedly recognized that although a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the illegal detention.”). (ii) Mr. Romero The government maintains (and the district court found) that Mr. Romero lacks standing to challenge the stop of the van Mr. Worthon drove, which was a rental vehicle that authorized only Albert Salas as its driver. Mr. Romero argues briefly that he is challenging both his stop and Mr. Worthon’s, but his brief focuses almost exclusively on the validity of Mr. Worthon’s stop. We conclude that the district court’s conclusion that Mr. Romero lacked standing to object to Mr. Worthon’s stop" }, { "docid": "23052077", "title": "", "text": "to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures....’” United, States v. Ordunar-Martinez, 561 F.3d 1134, 1137 (10th Cir.2009) (quoting U.S. Const, amend. IV). “[A] warrantless search is presumptively unreasonable under the Fourth Amendment and therefore invalid unless it falls within a specific exception to the warrant requirement.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir.2003). Upon review of the denial of a motion to suppress, “we view the evidence in the light most favorable to the government, accept the district court’s findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Eckhart, 569 F.3d 1263, 1270 (10th Cir.2009), cert, denied, — U.S. -, 130 S.Ct. 1752, 176 L.Ed.2d 222 (2010). In this case, the district “court generally found Officer Cortez’ testimony at the [suppression] hearing to be credible” (Doc. 29 at 4), a factual finding we review for clear error. United States v. Taylor, 592 F.3d 1104, 1108 (10th Cir.), cert, denied, — U.S.-, 130 S.Ct. 3339,176 L.Ed.2d 1234 (2010). 1. Search of Defendant’s person Polly first argues that the search of his person was unreasonable, both because the traffic stop was unjustified and because the resulting detention exceeded the scope of the stop. For Fourth Amendment purposes, the legality of a traffic stop is assessed pursuant to the framework established in Terry v. Ohio, 892 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Winder, 557 F.3d 1129, 1133 (10th Cir.), cert, denied, — U.S.-, 129 S.Ct. 2881, 174 L.Ed.2d 591 (2009). Accordingly, we proceed in two steps. First, we question whether the traffic stop “was ‘justified at its inception.’ ” Id. (quoting United States v. Valenztiela, 494 F.3d 886, 888 (10th Cir.2007)). Second, if the stop was justified, “we determine whether ‘the resulting detention was reasonably related in scope to the circumstances that justified the stop in the first place.’ ” Id. at 1134 (quoting Valenzuela, 494 F.3d at 888). Polly argues that the traffic stop was not justified at the" }, { "docid": "15167348", "title": "", "text": "were entitled to preserve the status quo and take reasonable steps to ensure their safety. The court did not specifically address the search of Albert’s person. Because the court determined Albert was not illegally arrested, it did not consider whether the evidence seized from the vehicle and the statements he made to the police should be suppressed for that reason. Following the denial of his motion to suppress, Albert filed a written stipulation admitting the facts necessary for a conviction but preserving his right to appeal. The court found Albert guilty after a bench trial and sentenced him to 94 months imprisonment, just below the advisory guideline range. Albert filed a timely notice of appeal. Albert maintains the officers’ handcuffing and searching him amounted to an illegal arrest. The government contends the district court correctly concluded Albert was detained, not arrested, prior to the discovery of the shotgun and ammunition and his incriminating statements. The government also argues that, regardless of whether Albert was lawfully detained or illegally arrested, the shotgun and ammunition should not be suppressed because: (1) they were discovered in the trunk, which the officers had probable cause to search following the discovery of drugs in the passenger compartment; and (2) they were discovered pursuant to a valid inventory search. Albert contends we should not consider whether the discovery of the methamphetamine provided the police with probable cause to search the trunk because the government raises this issue for the first time on appeal. As for the inventory search, Albert argues it cannot provide a basis for denying his motion to suppress because DeNeff lacked justification for impounding the vehicle. II. DISCUSSION “In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. The ultimate determination of reasonableness under the Fourth Amendment is a question of law, which we review de novo.” United States v. Contreras, 506 F.3d 1031, 1035 (10th Cir.2007) (citation omitted). A. Fourth Amendment Analysis In Terry v. Ohio, the Supreme Court held a police officer can temporarily detain an individual suspected" }, { "docid": "23679224", "title": "", "text": "Fourth Amendment because Vake’s consent was not “voluntary.” The district court denied this motion, and Defendant entered a conditional plea of guilty, preserving his right to challenge the district court’s denial of his motion to suppress. Defendant was later sentenced to twenty-seven months in prison, followed by thirty-six months of supervised release. Judgment was entered on January 30, 2003, and Defendant filed a timely notice of appeal from the district court’s order on the motion to suppress on January 31, 2003. DISCUSSION Standard of Review: When reviewing a district court’s denial of a motion to suppress, we will consider the totality of the circumstances and view the evidence in a light most favorable to the government. United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). We will accept the district court’s factual findings unless those findings are clearly erroneous. Id. The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court. Id.; United States v. Broomfield, 201 F.3d 1270, 1273 (10th Cir.2000). The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo. Long, 176 F.3d at 1307; United States v. Little, 60 F.3d 708, 712 (10th Cir.1995). Analysis: We hold that the officers’ entry into the motel room and subsequent search was justified by Nick’s consent, as he was a third party with actual and apparent authority, and the officers did not exceed the scope of his consent. Alternatively, once the officers’ initial entry into the motel room was justified by Nick’s consent, their subsequent search was justified by Vake’s voluntary consent. A. The Officers’ Entry and Search of the Motel Room as Justified by Nick’s Consent No party disputes that Nick gave Officer Miner consent to search the motel room. The dispute centers on whether Nick had actual and/or apparent authority to give such consent, and whether the officers act ed within the scope of his consent in executing the subsequent search of the room. We answer each question in the affirmative. 1. Nick had actual" }, { "docid": "3318963", "title": "", "text": "At the office, Perry cut off the top section of the baby powder container in order to remove the plastic bag. The plastic bag was heat-sealed and contained another clear plastic bag. The inner bag held the white powder. This method of packaging is consistent with that used to smuggle narcotics. The plastic bag contained approximately five-hundred grams of cocaine. At the suppression hearing, the district court examined the baby powder container. It found that despite Perry’s search, the lid could be placed back onto the container and the container then worked as before. The court also found that the loss of some of the baby powder from spillage was de minimis. It found that Perry’s search of the baby powder container was within the boundaries of Jackson’s consent. III. DISCUSSION In reviewing the denial of a motion to suppress, this court views the evidence in the light most favorable to the government and accepts the district court’s findings of fact unless clearly erroneous. United States v. Marquez, 337 F.3d 1203, 1207 (10th Cir.2003). The district court’s conclusion that a search is within the boundaries of a defendant’s consent is a factual finding that this court reviews for clear error. United States v. Pena, 143 F.3d 1363, 1368 (10th Cir.1998). The ultimate determination of reasonableness under the Fourth Amendment, however, is reviewed de novo. Marquez, 337 F.3d at 1207. A. Scope of Consent The events which took place in the train did not violate Jackson’s Fourth Amendment rights. The Fourth Amendment typically requires that law enforcement agents obtain a warrant before conducting a search. Pena, 143 F.3d at 1365-66. A warrant is not required, however, when the defendant consents to the search. Id. “When law enforcement officers rely upon consent to justify a warrantless search, the scope of the consent determines the permissible scope of the search.” Marquez, 337 F.3d at 1207. Jackson consented to the search of his carry-on bag. He argues, however, that the search of the baby powder container in the train violated his Fourth Amendment rights because it exceeded the scope of his consent. The search" }, { "docid": "22127537", "title": "", "text": "September 16, 1990. search of his truck. Similarly, Boyle argues that the district court erroneously denied her pretrial motion to suppress all evidence seized after the police stopped and searched her Suburban on September 17, 1990. We review the factual findings underlying the district court’s denial of a motion to suppress evidence for clear error. United States v. Flores, 48 F.3d 467, 468 (10th Cir.), cert. denied, — U.S. -, 116 S.Ct. 122, 133 L.Ed.2d 72 (1995). However, the ultimate determination of reasonableness under the Fourth Amendment is a legal question which we review de novo. Id. (a) Denial of Lipp’s motion to suppress Lipp challenges the district court’s ruling that the evidentiary items seized from his truck were admissible as fruits of a consensual search. Lipp contends that although he consented to a search of the passenger cab of his truck, his consent did not extend to the rear camper shell area. Thus, Lipp argues, the evidence seized from the rear of the truck — marijuana seeds, residue, processed marijuana, camouflage netting, a 9 mm handgun, and a machete — should have been excluded at trial. The scope of a consent search is limited by the breadth of the consent given. United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). In the instant case, Lipp was pulled over for a defective license plate light. Trooper Weigel issued Lipp a warning and then asked Lipp for permission to search the car for guns or contraband. Lipp replied, “Yeah, go ahead and look if you want.” After searching the passenger cab and finding some knives, trash bags and a set of brass knuckles, Trooper Weigel opened up the camper shell and conducted a search of the truck’s bed. At no time during this search did Lipp object or attempt to confine the scope of the search. In denying Lipp’s suppression motion, the trial judge found that Lipp consented to the search, that Lipp’s consent was specific and voluntarily given, and that the search of the rear camper area" }, { "docid": "23259047", "title": "", "text": "conduct demonstrated consent and when record revealed no evidence of coercion). We now address defendant’s argument with respect to the scope of the consent. “It is clear that the scope of a consent search is limited by the breadth of the consent given.” United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990) (citing United States v. Gay, 774 F.2d 368, 377 (10th Cir.1985)), cert. denied, — U.S. -, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). The government bears the burden of proof on the issue; however, as with the voluntariness inquiry, the district court should not begin its analysis with a presumption that the search exceeded the scope of the consent. See Price, 925 F.2d at 1271 (“Just as it is inappropriate to apply a presumption against waiver in determining voluntariness, it is inappropriate to use the presumption in determining the scope of consent.”) (citing Schneckloth, 412 U.S. at 241-47, 93 S.Ct. at 2055-58). Likewise, the district court must make the determination in light of the totality of the circumstances. Id. at 1272. The trooper in this case testified that he requested to search “the glove box, the trunk and the remainder of [the] vehicle.” I R. tr. at 7, 11. Defendant contends that the trooper exceeded the scope of this consent by searching beneath the back seat of the automobile, yet defendant stood only five feet away from the automobile while the trooper placed his hand in the cleft between the back seat cushions and discovered the package. Even if the cleft between the seat cushions were not included within the “remainder of the vehicle,” it would be reasonable to conclude that defendant’s acquiescence indicated that the search was within the scope of the consent. See United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986) (“Failure to object to the continuation of the search under these circumstances may be considered an indication that the search was within the scope of the consent.”). See also Pena, 920 F.2d at 1514-15 (citing Espinosa for same principle). The defendant objected to the scope of the consent, but this objection occurred" }, { "docid": "23259048", "title": "", "text": "trooper in this case testified that he requested to search “the glove box, the trunk and the remainder of [the] vehicle.” I R. tr. at 7, 11. Defendant contends that the trooper exceeded the scope of this consent by searching beneath the back seat of the automobile, yet defendant stood only five feet away from the automobile while the trooper placed his hand in the cleft between the back seat cushions and discovered the package. Even if the cleft between the seat cushions were not included within the “remainder of the vehicle,” it would be reasonable to conclude that defendant’s acquiescence indicated that the search was within the scope of the consent. See United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986) (“Failure to object to the continuation of the search under these circumstances may be considered an indication that the search was within the scope of the consent.”). See also Pena, 920 F.2d at 1514-15 (citing Espinosa for same principle). The defendant objected to the scope of the consent, but this objection occurred after the troopers discovered the cocaine. I R. tr. at 10. We consider this a natural reaction of one whose crime has been uncovered, and the district court was entitled to discount it. In any event, the testimony came from the trooper, not the defendant. In sum, we cannot say that the district court was clearly erroneous in finding vol-untariness and in finding that the search did not exceed the scope of the consent. II. Unlawful Detention Defendant argues, for the first time on appeal, that the trooper unlawfully detained him by asking him questions which were beyond the scope of the purpose of the traffic stop. Therefore, he argues, any evidence found as a result of the detention should be excluded as fruit of the poisonous tree. See United States v. Arango, 912 F.2d 441, 446 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). The court below had no occasion to address this argument because defendant did not raise it. Instead, the suppression hearing centered entirely on the" }, { "docid": "4228700", "title": "", "text": "search: the government must (1) \"proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given\" and (2) \"prove that this consent was given without implied or express duress or coercion.\" McRae, 81 F.3d at 1537 (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.1995)). The district court correctly found that Mr. Sanchez gave consent. The totality of the circumstances indicates that Mr. Sanchez voluntarily consented to Officer Powell's search of the interior of his vehicle for weapons. B. The Scope of the Search Mr. Sanchez argues that Officer Powell's search, during which he discovered and removed two bundles from the vehicle and peeled back some tape on one of the bundles, exceeded the scope of his consent. \"[T]he scope of a consent to search is limited by the breadth of the consent given.\" McRae, 81 F.3d at 1537 (quoting United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991)). \"A suspect may of course delimit as he chooses the scope of the search to which he consents.\" Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991). To evaluate the scope of a defendant's consent, we employ an \"objectively reasonable\" standard and ask: \"what would the typical reasonable person have understood by the exchange between the officer and the suspect?\" United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir.1995) (quoting Jimeno, 500 U.S. at 251, 111 S.Ct. at 1803-04). We determine from the totality of the circumstances whether a search remains within the boundaries of the consent given and view the evidence in the light most favorable to the government. McRae, 81 F.3d at 1537. After receiving consent to search, Officer Powell initially looked in the glove compartment and then immediately \"to the seat of the car [where] he observed two bundles on the seat partially covered by a flannel shirt.\" II R. 57. The officer noticed a piece of plastic sticking out from one of the duct-taped bundles and it appeared to have" }, { "docid": "20701786", "title": "", "text": "the address. Judge Clevert concluded that McMillian and Knueppel impliedly consented to Officer Shull’s entry into the bedroom. Judge Clevert did not expressly rule on whether Officer Shull’s observation of the two gun cases supplied probable cause to search for weapons, although he determined that the officers acted in good faith despite any deficiencies in the search warrant. Judge Clevert therefore 'denied McMillian’s motion to quash the search warrant. Pursuant to the parties’ agreement, Judge Randa accepted Judge Clevert’s ruling, and the parties proceeded to a stipulated bench trial. Judge Randa found McMillian guilty of one count of possessing firearms and ammunition as a felon and sentenced him to 77 months, imprisonment and 3 years of supervised release. II. Discussion In reviewing the denial of a motion to suppress evidence, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Gutierrez, 760 F.3d 750, 753 (7th Cir.), cert. denied, — U.S.-, 135 S.Ct. 735, 190 L.Ed.2d 459 (2014). On appeal, McMillian argues that the arrest, the protective sweep, and Officer Shull’s entry into the back bedroom were unlawful and that the search warrant was defective. We address each of McMillian’s arguments in turn. A. Legality of McMillian’s Arrest McMillian argues that his arrest inside the doorway of his house was unlawful because the Fourth Amendment prohibits the police from making “a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest.” Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Although the government disputes the contention that McMillian was inside at the time of his arrest, we need not consider whether Officer Shull crossed the threshold of the house. McMillian forfeited the right to appeal the legality of his arrest by failing to challenge the arrest before the district court. A criminal defendant forfeits an argument if he “negligently fails to assert a right in a timely fashion.” United States v. Brodie, 507 F.3d 527, 530 (7th Cir.2007); see also United States v. Kelly, 772 F.3d 1072, 1079 (7th" }, { "docid": "18341149", "title": "", "text": "search of the duffle bags. The district court further held that even if it were to find that standing was not an issue and address the matter on the merits, it would deny the motion. In its written order, the district court found that the trooper had legitimately stopped Mr. Worthon; the officers seized the van at the request of the rental company because no authorized driver was present; Mr. Worthon had agreed to allow the trooper to drive him to a motel; and, therefore, the trooper and Mr. Worthon would be in close contact for some time. The district court found that under these circumstances, there was a legitimate basis for feeling the duffle bag to protect officer safety. Rec. vol. I, doc. 56, at 6. II. DISCUSSION Mr. Worthon and Mr. Romero raise nearly identical issues on appeal — four challenges to the district court’s ruling: (1) the officers deliberately caused Mr. Wor-thon’s traffic violation, rendering the stop unreasonable; (2) the duration and scope of Mr. Worthon’s stop were unreasonable, thus violating the Fourth Amendment; (3) the officers’ manipulation and search of the duffle bags was unreasonable; and finally, Mr. Romero contends (4) the district court erred when it found that the purported traffic violation of “following too closely,” under Kan. Stat. Ann. § 8 — 1523(a), occurred. 1. The Reasonableness of Mr. Worthon’s Stop A. Standard of review In reviewing the district court’s denial of a motion to suppress, we review the court’s factual findings for clear error and view the evidence in the light most favorable to the government. See United States v. Patterson, 472 F.3d 767, 775 (10th Cir.2006). We review de novo the reasonableness of a search or seizure under the Fourth Amendment. United States v. Lyons, 510 F.3d 1225, 1234 (10th Cir.2007). The credibility of witnesses, the weight accorded to evidence, and the reasonable inferences drawn therefrom fall within the province of the district court. United States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir.2004). “Finally, whether a defendant has standing to challenge a search is ... subject to de novo review.” United" }, { "docid": "12068932", "title": "", "text": "did not withdraw his consent until officers discovered the alleged drug paraphernalia in the bedroom closet. The district court further found that the subsequent search was a search incident to Defendant’s arrest. We first review the district court’s denial of Defendant’s motion to suppress. Defendant asserts that his lack of consent to the search requires reversal of the district court’s suppression denial, and further asserts that even if he did consent, the officers’ search exceeded the scope of his consent. In reviewing the denial of a motion to suppress, we review a district court’s factual determinations for clear error and ultimate determinations of reasonableness under the Fourth Amendment de novo. United States v. Morales-Zamora, 974 F.2d 149, 151 (10th Cir.1992). Because credibility of witnesses at a suppression hearing is critical to a district court’s consent determination, we must not substitute our judgment for that of the district court. United States v. Dewitt, 946 F.2d 1497, 1500 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992). “Under the clearly erroneous standard, the trial court will not be reversed unless its findings were without factual support in the record, or if after reviewing all the evidence, the appellate court is left with the definite and firm conviction that a mistake has been made.” United States v. Butler, 966 F.2d 559, 562 (10th Cir.1992). Whether Defendant consented to the search turned on whether the district court believed the parole officers or believed Defendant, Defendant’s girlfriend and Defendant’s neighbor. The district court’s findings make it clear that he found the parole officers’ testimony more credible. Thus, because the testimony of the parole officers clearly supports the district court’s finding of consent and because we will not substitute our judgment of credibility for that of the trial court, we will not disturb the district court’s finding of consent. Defendant also asserts that the parole officers exceeded the scope of Defendant’s consent by looking further than the living room for Stokes. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness —" }, { "docid": "12068931", "title": "", "text": "— ie., a Higgins 12-gauge sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). Defendant filed a motion to suppress all the evidence found in his apartment, asserting that he did not consent to the search. After the district court denied his motion to suppress, a jury convicted Defendant of counts one, three, and four and acquitted him of count two — ie., carrying a firearm in relation to a drag trafficking crime. Defendant then appealed his conviction to this court, challenging the denial of his motion to suppress and the sufficiency of the evidence for his three convictions. On February 5, 1993, in an unpublished opinion, this court remanded the case for the district court to make factual findings under Fed. R.Crim.P. 12(e) with regard to the motion to suppress. See United States v. Mains, 92-4066, 1993 WL 26827 (10th Cir. Feb. 5, 1993). On remand, the district court affirmed its denial of the motion to suppress, finding that Defendant voluntarily consented to the search of the apartment and again to the bedroom, and did not withdraw his consent until officers discovered the alleged drug paraphernalia in the bedroom closet. The district court further found that the subsequent search was a search incident to Defendant’s arrest. We first review the district court’s denial of Defendant’s motion to suppress. Defendant asserts that his lack of consent to the search requires reversal of the district court’s suppression denial, and further asserts that even if he did consent, the officers’ search exceeded the scope of his consent. In reviewing the denial of a motion to suppress, we review a district court’s factual determinations for clear error and ultimate determinations of reasonableness under the Fourth Amendment de novo. United States v. Morales-Zamora, 974 F.2d 149, 151 (10th Cir.1992). Because credibility of witnesses at a suppression hearing is critical to a district court’s consent determination, we must not substitute our judgment for that of the district court. United States v. Dewitt, 946 F.2d 1497, 1500 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992). “Under the clearly erroneous standard," }, { "docid": "7572881", "title": "", "text": "recovered from the van, which the district court denied. Carbajal-Iriarte was ultimately convicted of both counts. He now appeals the denial of his motion to suppress. III. Discussion Carbajal-Iriarte asserts the district court erred in denying his motion to suppress because his consent was not voluntary and the search went beyond the scope and duration of his consent. In considering a district court’s denial of a motion to suppress, this court reviews factual findings for clear error, viewing the evidence in the light most favorable to the government, and reviews legal conclusions de novo. United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir.2006). A. Voluntariness of Consent Whether a defendant’s consent to search his vehicle was voluntary is a question of fact, and the court considers the totality of the circumstances in making this determination. United States v. Dozal, 173 F.3d 787, 795 (10th Cir.1999). The government bears the burden of proof on this issue, and “must show that there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given.” United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993). Carbajal-Iriarte argues his consent to each search was not voluntary because Agent Small never informed him he could refuse. Additionally, Carbajal-Iriarte claims he felt he had no choice but to comply with Agent Small’s request to let other officers search the van alongside Interstate 40. In support of this claim, he notes he asked permission to use the bathroom and drove at an “unusually slow” rate of speed when going to meet Officer Ramos. None of the facts referenced by Carbajal-Iriarte are sufficient to establish the district court clearly erred in finding he voluntarily consented to the multiple searches of his vehicle. The Supreme Court has held that a defendant’s consent to a search may be voluntary even when the consenting party was not informed he could refuse. Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, the mere fact Agent Small did not specifically tell Carbajal-Iriarte that he was" }, { "docid": "6695514", "title": "", "text": "of the evidence but does not preclude its admission. State v. Provost, 386 N.W.2d 341, 343 n. 3 (Minn.App.1986). Cf. Palmer, 691 F.2d at 922 (government was allowed to introduce illegally seized cocaine snorting tube from defendant’s saddle bag to impeach defendant’s statement that he had never diverted cocaine, which was ostensibly used for dental purposes, to his personal use). The court also instructed the jury to consider the evidence only for the limited purpose of impeachment. Defendant nonetheless argues that even if the bag’s admission was proper for impeachment purposes, defects in the bag’s chain of custody rendered its use at trial improper. Defects in the chain of custody, however, go to the weight of evidence, not its admissibility. United States v. Drumright, 534 F.2d 1383, 1385 (10th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 385, 50 L.Ed.2d 327 (1976). We conclude that the bag was properly used to impeach defendant’s testimony, a conclusion which defendant’s chain-of-custody argument does not alter. II Defendant next asserts that the district court erred in failing to suppress the 1000 grams of cocaine found under the motel room mattress. Defendant argues that his request to the police to retrieve his money “on the bed” or “at the bed” was consent to search a limited area, and the police decision to search under the mattress by raising it exceeded the scope of defendant’s consent. We disagree. The question of whether a search remained within the boundaries of the consent given is essentially factual, to be determined from the totality of the circumstances. United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986). We accept the trial court’s findings unless clearly erroneous. Id. The district court found: “the search under the mattress was within the permissible scope of defendant’s consent. Consent to a search to retrieve money from the bed would reasonably include a search underneath the mattress when the officers did not find the money on the bed. It was reasonable for the officers to assume that a large sum of money could have been placed under the mattress. Because the scope of" }, { "docid": "7799809", "title": "", "text": "district court. A reasonable person would think that when he gives consent to search a motel room, his consent includes the small bathroom attached to the main room. We further conclude that the district court did not clearly err in finding that the defendant’s “go’ahead” response to Officer Devoti’s request to “look in” the motel room reasonably included a search into the area above the bathroom ceiling. Three factors persuade us in reaching this latter conclusion. First, at no point did Pena object to the officers’ search of the bathroom. He was not under arrest when Officers McDonald and Cannon went to the bathroom to conduct their search, though he was in the room. His failure to object to the officers’ entrance into and search of the bathroom “may be considered an indication that the search was within the scope of the consent.” United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986). Second, we have consistently held that similarly phrased requests for consent to search are requests for a full search of the premises. See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir.1997) (holding that by giving officer consent to .“scout around” his vehicle, defendant authorized full search of it, including underneath and around it); United States v. McRae, 81 F.3d 1528, 1537-38 (10th Cir.1996) (concluding that defendant’s consent to officer’s request to “look in” his car gave officer authorization to search the ear, including lifting up carpeting in the trunk of the car); United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986) (concluding that defendant’s consent to officer’s request to “look through5’ defendant’s automobile authorized officer to conduct thorough search of vehicle). Third, because Officer Devoti asked for Pena’s consent immediately after Pena had admitted to smoking marijuana in the motel room, it was clear to Pena that the object of the search was to find illegal narcotics. One in possession of illegal drugs does not typically leave them out in the open. Consent to an officer’s request to search for drugs would reasonably include areas in which one would be expected to hide drugs." } ]

[ { "docid": "18326704", "title": "", "text": "den. (1965), cert. den., 382 U.S. 961, 86 S.Ct. 444, 15 L.Ed.2d 364 (1965), reh. den. 383 U.S. 963, 86 S.Ct. 1227, 16 L.Ed.2d 306 (1966), and Tackett v. State, 443 S.W.2d 450, 453[3] (Tenn.1969). Furthermore, there was substantial evidence that Mr. Martin confessed his complicity in the crimes, had some of the fruits thereof in his constructive possession, gave investigators thereof a full account of what had taken place in the dwelling of Mr. and Mrs. Stitts, and advised the police officers accurately that the remainder of the fruits of the crime were in the possession of “Jerry”. While none of the immediately foregoing placed Mr. Long at the scene of the crimes with Mr. Martin, the earwitness-testimony of Mrs. Stitt did provide substantial evidence of his presence and participation there. The identification of the voice of a person suspected of a crime as the voice of a suspected criminal is admissible evidence. Stovall v. Denno, 388 U.S. 293, 295, 87 S.Ct. 1967, 1969, 18 L.Ed.2d 1199 (1967) (where a suspect had been required pretrial by law-enforcement officials to repeat “ * * * a few words for voice identification * * * ” and, under the totality of the circumstances there, that suggestive procedure in the process of identification was found to have been justified). The identification of a person as the committer of a crime solely on the basis of the identifier’s opinion, that the voice of a suspect is the same voice as that of the person who committed the crime, is fraught with the possibility of misidentification, and this weakens its strength as proof of culpability. Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir.1966) (“this is especially so when the identifier is presented with no alternative choices”). As soon as Mr. Martin was apprehended by the police and advised them of Mr. Long’s connection with the crimes committed, Mr. Long was the only other person who became and remained a suspect as his accomplice; thus, this is not a situation wherein Mrs. Stitt chose between alternative voices she heard in confrontations after the commission" } ]

[ { "docid": "9681780", "title": "", "text": "were arrested by police during the mid-afternoon of February 22, 1968, several hours after the robbery occurred. Mr. Doyle had been contacted by the police and was told that there were some suspects they would like him to see. The police positioned Doyle in an automobile outside the police station, where he witnessed petitioner’s two co-defendants exiting from a squadrol. Later that evening, Mr. Doyle returned to the police station where he witnessed a show-up of six Negro persons, three men and three women, with petitioner and the two women whom Doyle had viewed earlier in the middle of the group. At this show-up, Doyle identified petitioner and his two co-defendants as the perpetrators of the robbery. No counsel was present at the time of this identification, nor at bond court where Doyle again witnessed the defendants. The petitioner made a motion at his trial to suppress all identification testimony, both the out-of-court and any in-court identification on the basis of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court’s concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law. These cases further establish that, even if the State violates a suspect’s rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the in-court identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. at 240-241, 87 S.Ct. 1926, 18" }, { "docid": "21956871", "title": "", "text": "seated, some were standing engaged in conversation. The desk at which defendant was seated was on Alberstadt’s left as he entered the room, about four desks from the front. Defendant was seated in the prime desk chair, and not in the metal chair alongside customarily used for interviewing suspects and witnesses. After the excitement of the identification had passed, the witness Alberstadt was able to identify others in the room as police officers because of the visibility of their weapons. The Court does not adopt the testimony of the witness Alberstadt concerning his ability to see the weapons of all officers present, as some had their coats on. The Court further finds that the identification of defendant by Mr. Alberstadt was spontaneous in nature, in that no directions were given to him upon his arrival. The witness was surprised and angry at seeing defendant seated behind the desk and being accorded the privileges of his freedom. The Court also finds that Mr. Alberstadt thought there was “a pretty good chance” that he would see the man who had robbed him that day, although he was told nothing about the suspect he was to view. (3) Admissibility of evidence of pretrial identification by the witness Alberstadt. Defendant has argued at length that his identification by the witness Alberstadt was the fruit of an illegal arrest and as such should be suppressed. The Court having found that defendant was not arrested until immediately after his identification by Mr. Alberstadt on March 6, this argument is not of significance. The primary issue involved in determining the admissibility of pre-trial identification is whether the identification procedure followed was “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to amount to a denial of due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), establish a right to counsel at pretrial confrontations but have not been applied retroactively. The" }, { "docid": "12033574", "title": "", "text": "of improper show-ups cannot be sustained and there was thus no taint to the in-court identifications. Moreover, ' the District Court concluded — correctly in our opinion- — -that even had there been taint, there was an independent source for the in-court identifications. In short, we find no basis either on due process grounds or on policy considerations for finding the show-up identifications in these cases “unnecessarily suggestive.” Accordingly, the admission of testimony relating to such identifications was not error. It follows that the judgments of the District Court in Nos. 71-1365 and 71-1366 granting habeas relief are reversed, with directions to dismiss the petitions, and the judgment in No. 72-1584, denying habeas relief is affirmed. . The State alleges that petitioner has not exhausted his State remedies in these cases. Because of the result reached we have accepted the contention of the petitioner on this point. . December 10— Mrs. Virginia Beamer Mrs. Mary Weese December 13— Mrs. Elizabeth Keeton Mrs. Lucille Phillips December 18— Mrs. Mary Weese Mrs. Lucille Phillips . In United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Supreme Court held that an in-court identification of a defendant by a witness to a crime must be excluded from evidence if such witness had previously identified the defendant while defendant was in police custody and without counsel, unless it could be shown that such in-court identification had an independent origin or constituted harmless error. Wade was amplified in Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L. Ed.2d 1178, which held that trial testimony by witnesses recounting pre-trial identifications of the defendant made while defendant was without counsel must be excluded from evidence, whether or not such testimony had an independent source. Both decisions were based upon the Sixth Amendment guarantee of a right to counsel at any critical stage of a prosecution. . Neil v. Biggers (1972) 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401: “But as Stovall makes clear, the admission of evidence of a showup without more does not violate due" }, { "docid": "8357136", "title": "", "text": "state the same rule. Leach was most recently followed in United States v. Lanier, 578 F.2d 1246, 1253 (8th Cir. 1978). IV. In regard to petitioner’s claim relating to the trial court’s alleged failure to sustain the petitioner’s motion to suppress the in-court identification testimony, the Missouri appellate court stated the following: Appellant next contends that the trial court erred in failing to sustain his motion to suppress the in-court identification testimony of Varsalona and Bell. Appellant acknowledges that he can point to no out-of-court identification procedures which might have influenced the identification testimony. More significantly in this case defendant’s identification was hardly an issue. He was apprehended at the scene of the crime. Bell and Varsalona saw him during the robbery and when he was arrested. There was no question that defendant was the person arrested, the sole question being the extent of his participation in the robbery. The trial court did not err in overruling the motion. The transcript on direct appeal shows that petitioner’s motion to suppress pretrial identification was allegedly based on violations of principles stated in the trilogy of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and the progeny of those cases. The transcript further shows that a pretrial hearing was conducted and that both witness Varsalona and witness Bell were examined. The appellant’s brief in the Missouri appellate court properly stated that petitioner’s claim does not present a typical Wade line-up question. That brief stated: Appellant is not asserting that the prosecution used lineups or photographs or any other discernable mechanism in order to manipulate the witnesses’ pretrial identification and thereby lay the groundwork for positive and firm in-court identification. Appellant does, however, wish to call to the Court’s attention the testimony of the witness Harry Bell (Tr. 182, 183) wherein he affirms that something had happened to make him more able to identify appellant (Tr. 182) and wherein he" }, { "docid": "21718135", "title": "", "text": "since the time of the assault, the implication was clear: The police thought this was the man who had attacked Aracelis. See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (“The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.”); but see Biggers, 409 U.S. at 198, 93 S.Ct. 375 (“the admission of evidence of a showup without more does not violate due process.”). Moreover, the identification was arguably unnecessarily suggestive. The district attorney contends that the decision to perform a showup Vasquez was appropriate because “to have held a lineup in petitioner’s case would have meant the detention of an un-arrested man for several hours.” Affidavit and Memorandum of Law in Opposition, at 28 (hereafter “D.A. Brief’); see e.g. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (noting that suggestive identifications may not be unduly suggestive when they happen immediately following a crime because they can “spar[e] innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them”); United States v. Bautista, 23 F.3d 726, 730 (2d Cir.1994) (finding the presentation of suspects to an informant directly after incident at the scene of the crime was not unnecessarily suggestive because it served a valid police function — avoiding the arrest of an innocent man). There is certainly support for this claim, particularly when combined with the fact that “a fresh identification is the best kind.” Stephen A. Saltzburg, American Criminal Procedure, 595 (3d ed.1988). But, on the other hand, a few hours of detention would not have been such a burden to petitioner, particularly when he was already present in the precinct and faced the alternative of a suggestive showup identification. And it is not clear how much a few extra hours would have affected the victim’s memory. In any event, the “totality of the circumstances” are such that in spite of any suggestiveness, Araeelis Madera’s pretrial identification was sufficiently reliable to let a jury consider it. 1. Opportunity to View" }, { "docid": "3131566", "title": "", "text": "However, the evidence of guilt as to that offense is overwhelming. Accordingly we deem it appropriate to follow the alternative suggestion made by the Government, that if the evidence is found insufficient to establish first degree murder the court should follow the procedure set forth in Austin, permitting sentencing for second degree murder without a new trial. 2. Permissibility of identification testimony. We reject the contention made for the first time on appeal, that the admission of eye witness testimony identifying appellant with the crime violated due process. There were two witnesses to the brutal assault on Mrs. Southerland in her backyard. That area was brightly lit by floodlights, and both witnesses were within forty feet of where Mrs. Southerland was struck. Moreover, one of the witnesses had a close view of the assailant as he came out of the door of the Southerland house and walked by on the sidewalk, hammer in hand. Both witnesses identified appellant as the man they had seen. The identifications were made when the police brought him back to the scene of the crime to confront Mrs. Southerland, who was then being put into an ambulance to take her to the hospital, where she was to require two month’s intensive treatment. Appellant’s claim is predicated on the fact that at the time of the identification appellant was in police custody, and was not identified from a line-up. Such identifications present the danger that they may be the product of police suggestion rather than true recall. In this case we are clear that we do not have before us a situation where “the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). That is the standard governing .identifications taking place prior to the issuance of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). When the police arrived at Mrs. Southerland’s house, she told them that appellant had attacked her." }, { "docid": "22385190", "title": "", "text": "not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” . The Supreme Court has said that the “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967). . The Supreme Court has taken note that “[T]he practice of showing suspects singly to persons for the purpose of identification * * * has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). See also United States v. Wade, 388 U.S. 218, 228-232, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). . There is serious doubt that such evidence would have been admissible since petitioner did not testify and did not put his character in issue. See generally Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168 (1948) ; Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892) ; Odom v. United States, 377 F.2d 853, 859-860 (5 Cir. 1967) ; United States v. Clarke, 343 F.2d 90, 91-92 (3 Cir. 1965); 1 Wigmore, Evidence § 57 and §§ 193 et seq. (3d ed. 1940). . The district judge found his recollection reinforced by his observation to petitioner at the time of sentencing, two months after the trial: “Mr. Hogan, who represented you in the trial in which you were found guilty by the jury, had really done a remarkably fine job, even though the results were not to your liking, and I am quite able to understand how you felt about that.” . The Criminal Justice Act recognizes this evident fact in providing:" }, { "docid": "23227685", "title": "", "text": "those of the witness, not the product of governmental suggestion — intentional or unintentional, subtle or overt. United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See Simmons v. United States, supra; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The standard the Supreme Court has prescribed for excluding identification testimony due to undue governmental suggestión is that the movant show that the specific events leading to the identification were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971. In so ruling the Supreme Court noted that the utilization of cross examination in exposing the potential for error in the case can substantially lessen the likelihood that a conviction will occur based on a misidentification. Id. Each side argues vigorously and has submitted testimony to show that the circumstances of this case do, or do not, give rise to a “very substantial likelihood of irreparable misidentification.” In addition to the facts outlined above, three experts testified concerning the issues presented by this motion. Dr. Martin Orne, testifying as an expert in hypnosis on behalf of the defense, examined the tapes of Mr. Neely’s hypnotic interrogation to determine whether Mr. Neely’s memory could have been influenced by suggestions made during that session. He concluded that there were significant, unconscious cues and suggestions communicated to Mr. Neely by the FBI agents conducting the interrogation. As a basis for this opinion Dr. Orne pointed to the agents’ interest in only certain parts of Mr. Neely’s narrative. For example, he states that as a professional observer he felt that the FBI was interested in a Filipino woman and a single room. That interest led them in subtle, unintentional ways to communicate to Mr. Neely that they were not interested in a black man and a 20-bed room — subjects which Mr. Neely recalled under hypnosis. By communicating to Mr. Neely that interest, Mr. Neely was encouraged to provide an acceptable “memory” in response to" }, { "docid": "18326729", "title": "", "text": "is missing in all but approximately twelve instances, therefore, thirty-four are subject to the rule of waiver [under the procedural law of Tennessee]. Anglin v. State, 553 S.W.2d 616, 622 (1977). * * * Many of the comments to which appellant [petitioner] directs us are, while error, isolated statements and misstatements made during a hotly contested trial. * * * ” State of Tennessee, appellee, v. Jerry Bates Long, appellant, supra, op. at p. 9. This Court FINDS that the prejudicial remarks of the prosecuting attorneys herein were extensive. The deliberateness in the placing of the remarks before the jury The historical facts found, supra, concerning “the prosecutorial misconduct of repeatedly injecting into the minds of the jurors, and judge, that Martin had told all — confessed”, and the extensiveness of those and other remarks which were similarly improper and prejudicial, prompts this Court to FIND that they were placed deliberately before the jury, as opposed to having been rendered as the result of accidental misspeaking. The strength of the competent proofs introduced to establish the guilt of Mr. Long As delineated in great detail in part I of this opinion, the only substantial evidence, properly admitted against Mr. Long at his trial, was the earwitness-testimony of Mrs. Stitt and the physical evidence taken constitutionally from his home. On her own, without prompting from law-enforcement authorities, Mrs. Stitt, after the crimes were committed, in her second confrontation with Mr. Long identified him as “the man” who was with Mr. Martin during the commission of the crimes charged in her home %-of-a-year after she was unable to identify him during her first confrontation with him. Thus, Mrs. Stitt did not compare the voice of Mr. Long with the voice of anyone else. The late Circuit Judge Sobeloff said in this context: * * * Where the identification is by voice alone, the absence of some comparison involves grave danger of prejudice to the suspect, for as one noted commentator has pointed out: “[E]ven in ordinary circumstances we must be cautious and accept only with reserve what a witness pretends to have" }, { "docid": "16274973", "title": "", "text": "that the manner in which petitioner was arrested in any way deprived him of a fair trial upon his not guilty plea. Secondly petitioner contends that his premises were illegally searched and that certain clothing was illegally taken therefrom. Conceding, arguendo, that this is so, it is clear from the record, and indeed from petitioner’s own testimony before this Court that nothing seized during the search of his premises was used against him during his trial. There was no mention made during his trial either before the jury or otherwise of the things allegedly seized in petitioner’s home. And furthermore, since this Court has concluded that the evidence clearly shows that petitioner was positively identified by the victim and placed under arrest completely independently of the articles allegedly seized, the search and seizure, even if illegally conducted, in no way prejudiced petitioner or denied him in any way his right to a fair trial. He was arrested, charged, tried and convicted not on the basis of any evidence seized from his home but rather on the positive identification of witnesses without any reference whatsoever to the fruits of the search. Petitioner next argues that his constitutional rights were violated when he was forced to re-enact the crime, and to speak certain words which he alleges constituted self-incrimination. But it must be remembered that the evidence shows that petitioner was positively identified by Mr. James both from photographs and from personal confrontation before petitioner was made to re-enact the crime and without any reference thereto. In .other words, the identification of petitioner made by the witnesses, Mr. James, and the identification upon which petitioner was convicted was in no way “tainted” by any unconstitutional lineup procedure, and thus, even under the teachings of the recent cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (June 12, 1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (June 12, 1967), which, incidentally, according to Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (June 12, 1967), do" }, { "docid": "3916177", "title": "", "text": "photographic record of the lineup was made or preserved and the police report, as reflected in the testimony of the officers present, was incomplete. It appears from the record, however that all five participants were Black and that no distinctive clothing was worn. Three of the participants were approximately six feet tall or taller while the petitioner was only 5 feet 5V2 inches. Only Odom wore glasses. A police officer testified that the victim identified Odom as her assailant although “she was somewhat reluctant at first.” After the lineup, Mrs. Buff and her parents were brought into another room, and Odom was also brought in. The purpose for this showup was apparently to obtain a voice identification. While in her presence, Odom was questioned by the authorities concerning the crime. The victim testified that she was able to identify the defendant’s voice as that of her attacker. A police officer testified that the victim stated that she was “sure” that Odom was her attacker and became hysterical when they brought him into the same room with her. During trial, in addition to testifying concerning the pretrial identifications of Ódom, Mrs. Buff identified him as the perpetrator of the crime. I. Odom’s primary claim here is that the pretrial identification procedures described above were unnecessarily and prejudi-cially suggestive and that, accordingly, the witnesses’ testimony concerning these occurrences was improperly admitted and that the in-court identification of defendant by Mrs. Buff was irreparably tainted. In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the Supreme Court held that if a pretrial confrontation “was so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny due process of law, a habeas corpus petitioner challenging the admissibility of testimony concerning the pretrial confrontation and a subsequent in-court identification, would be entitled to his requested relief. The Court cautioned, however, that a determination of this issue turns upon “the totality of the circumstances” presented by the particular case. This court, in United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-03 (7th Cir. 1975), identified three" }, { "docid": "4903150", "title": "", "text": "accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Id. Weighing these factors in the instant case against “the corrupting effect of the suggestive identification,” see id., leaves little doubt about the reliability of Mr. Phillips’ identification. He had ample time to study the robber, his attention to detail and the accuracy of his description were good, he never wavered in its identification, and he picked out petitioner’s photograph a mere two days after the robbery. Under the totality of the circumstances, therefore, this Court has concluded that admission of the in-court identification of petitioner by Mr. Phillips did not offend constitutional principles of fairness and due process. See also Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). With respect to the identification of petitioner by Miss Baker, were she the only eyewitness the Court might well reach a different conclusion. A careful review of the state court records reveals that Miss Baker was not a very impressive witness. She clearly was more vulnerable to a suggestive identification procedure. Her age, her inconsistent memory, her relatively poor opportunity to observe the robber, and her uncertainty when showed the four photographs all lead the Court to believe that her testimony alone might not have been very reliable. In light of the other evidence introduced against petitioner, however, especially the very effective testimony of Mr. Phillips, the Court has concluded that any error in admitting Miss Baker’s identification was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)." }, { "docid": "3916178", "title": "", "text": "with her. During trial, in addition to testifying concerning the pretrial identifications of Ódom, Mrs. Buff identified him as the perpetrator of the crime. I. Odom’s primary claim here is that the pretrial identification procedures described above were unnecessarily and prejudi-cially suggestive and that, accordingly, the witnesses’ testimony concerning these occurrences was improperly admitted and that the in-court identification of defendant by Mrs. Buff was irreparably tainted. In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the Supreme Court held that if a pretrial confrontation “was so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny due process of law, a habeas corpus petitioner challenging the admissibility of testimony concerning the pretrial confrontation and a subsequent in-court identification, would be entitled to his requested relief. The Court cautioned, however, that a determination of this issue turns upon “the totality of the circumstances” presented by the particular case. This court, in United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-03 (7th Cir. 1975), identified three interrelated aspects of the “totality of the circumstances” which must be considered in a case such as the present. First, the court must determine whether the police procedures at issue in the case were, in fact, suggestive. If such suggestiveness is found, the court must next consider whether any unusual or exigent circumstances existed which might, at least in part, have justified the use of the faulty procedures. Finally, and most critically, the court must examine the reliability of the identification, in spite of the suggestive nature of the confrontation. It is clear that the reliability issue is the determining factor in this examination and unjustified, suggestive procedures may be overborne when there are present sufficient indicia of reliability. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). A. We have no doubt that the pretrial identification procedures utilized by the police in this case contained elements of suggestiveness, and that the fact that these procedures were consecutively applied increased the possible danger of misidentification. First, on the day following" }, { "docid": "3740249", "title": "", "text": "the first time on a habeas corpus petition in federal court. Criminal defendants believing federal constitutional rights are about to be violated must follow state procedures for making known the basis of their objections. Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). See Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 769, 66 L.Ed.2d 722, 731 (1981). Consequently, Nettles’s procedural default bars federal habeas review on the merits. Madeley v. Estelle, 606 F.2d 561 (5th Cir. 1979). Nettles next alleges that he was denied due process of law by the admission into evidence of the in-court identification testimony of one of the victims, Estelle Buschena, and her testimony concerning her pre-trial identifications. Claims that the circumstances of a police identification procedure are so unnecessarily suggestive as to produce irreparable misidentification must be evaluated in light of the totality of the surrounding circumstances. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). At the motion to suppress hearing, the circumstances surrounding the pre-trial identification made by the victims were explored. According to the record, Buschena viewed a photo-pak of five black males, all of whom had characteristics similar to those of the petitioner. After selecting two photos, she then identified one of them as Nettles’s photo. She stated at the time, however, that she was not positively certain that Nettles was her assailant. At a lineup held the next day, Buschena unequivocally identified Nettles as the man who had attacked and robbed her and her husband. Though none of the other participants in the lineup also appeared in the photo-pak examined by Buschena, we cannot say that the lineup was therefore unnecessarily suggestive. All the participants fit the same description as, and were of similar appearance to Nettles. Furthermore, Nettles was represented by counsel at the lineup. At trial, Buschena identified the petitioner and testified regarding the photo-pak and lineup identifications. The key factor in determining the admissibility of identification testimony is whether, under the totality of the circumstances, the identification was reliable. Manson v. Brathwaite, 432 U.S." }, { "docid": "2689917", "title": "", "text": "is not otherwise procedurally barred, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error.” Spears v. Mullin, 343 F.3d 1215, 1225 (10th Cir.2003) (citation omitted). However, “when ... the district court’s findings of fact are based merely on a review of the state record, we do not give them the benefit of the clearly erroneous standard but instead conduct an independent review.” Id. (quotation omitted); see also Turrentine, 390 F.3d at 1189. As we embark upon our review of Young’s petition, we are mindful that “our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” Mitchell v. Gibson, 262 F.3d 1036, 1063 (10th Cir.2001) (citation omitted). Ill Young argues that admission of a witness’ in-court identification of Young as one of the individuals who attempted to rob the Steak House violated his Fourteenth Amendment due process rights and Sixth Amendment right under the Confrontation Clause. He raises two distinct challenges. First, he argues that it was contrary to, or an unreasonable application of, Supreme Court precedent for the OCCA to hold that the in-court identification was admissible, when the witness first identified Young during an impermissibly suggestive pre-trial, one-person “show-up.” Second, he argues that the OCCA’s holding that the identification was reliable was based on an unreasonable determination of the facts in light of the record. At trial, the government offered testimony by Karl Robinson that Young was the shorter of the two men he saw walk into the Steak House. Robinson further testified that he identified Young as the shorter man at the hospital shortly after the crime occurred. Counsel for Young objected to the reliability of this testimony, arguing that the suggestive nature of the show-up procedure used to obtain Robinson’s initial identification tainted his testimony and rendered it inadmissible. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court addressed whether a severely injured victim’s identification of the defendant shortly after the crime was unnecessarily suggestive, and thus inadmissible, when the" }, { "docid": "8858993", "title": "", "text": "identified Sanc-hell on the basis of his profile and his voice. This time, however, she said that when she heard Sanchell at the preliminary hearing he had been talking to his attorney while she testified (rather than “to relatives” as she had testified at the suppression hearing in January). Mary Ann and Sharon, the next two witnesses, were unable to identify Sanchell at trial. Ann, the fifth witness, identified San-chell for the first time at trial. She based her identification entirely on his voice, which she said she had heard just before the suppression hearing. That concluded the identification testimony, the only evidence linking Sanchell to these crimes. Due Process Considerations The fundamental issue before us is whether admission of the identification testimony was proper under Fourteenth Amendment due process. We turn to a brief analysis of the law. As a general rule, the identification testimony of one who has actually observed a crime is admissible and it is for the trier of fact to determine whether the testimony is worthy of credence. A different rule applies, however, where improper police suggestions may have influenced the witnesses to identify an innocent suspect. Limits on the admissibility of identification testimony which may have been influenced by governmental suggestion are mandated by the Sixth Amendment right to counsel clause and the due process clauses of the Fifth and Fourteenth Amendments. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court examined the problem of pretrial lineups and one-man showups at length, noting that such confrontations are “peculiarly riddled with innumerable dangers • . . ' . ' which might derogate from a fair trial.” 388 U.S. at 228, 87 S.Ct. at 1933. The Court further observed: A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than" }, { "docid": "5917975", "title": "", "text": "of petitioner’s arrest, the police asked the victims to identify their assailants from a group of individuals seated in a police car. Petitioner contends that the identification procedure employed by the Newark Police violated the Fourteenth Amendment’s Due Process Clause because it unduly emphasized petitioner as a suspect. Moreover, petitioner argues that Johnson’s and Hankerson’s in-court identifications should have been excluded, as this testimony was not sufficiently independent of the original identification to escape the taint of the allegedly impermissible procedure. The Due Process Clause of the Constitution forbids the use of identification procedures which place inordinate emphasis upon a specific individual. See, e.g., Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). However, since “reliability is the linchpin in determining the admissibility of identification testimony,” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), the suggestiveness of an identification procedure must be evaluated in light of the totality of the circumstances surrounding it.” Id. at 104, 97 S.Ct. at 2247-48 (citing Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967)); see also United States v. Conway, 415 F.2d 158, 163 (3d Cir.1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1131, 25 L.Ed.2d 401 (1970). Facts indicating that an otherwise suggestive identification is highly reliable may render the identification admissible. The Supreme Court has given substance and formal structure to this totality requirement by enumerating five factors to be considered when evaluating an identification procedure: the opportunity for the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the time of confrontation, and [5] the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Applying these criteria to the facts of the instant case reveals that the admission of the identification testimony did not offend constitutional standards. Both Johnson" }, { "docid": "16274974", "title": "", "text": "the positive identification of witnesses without any reference whatsoever to the fruits of the search. Petitioner next argues that his constitutional rights were violated when he was forced to re-enact the crime, and to speak certain words which he alleges constituted self-incrimination. But it must be remembered that the evidence shows that petitioner was positively identified by Mr. James both from photographs and from personal confrontation before petitioner was made to re-enact the crime and without any reference thereto. In .other words, the identification of petitioner made by the witnesses, Mr. James, and the identification upon which petitioner was convicted was in no way “tainted” by any unconstitutional lineup procedure, and thus, even under the teachings of the recent cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (June 12, 1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (June 12, 1967), which, incidentally, according to Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (June 12, 1967), do not apply retroactively, the fact that petitioner was required to re-enact the crime, speak certain words, or appear in a police lineup, even without the benefit of counsel, did not violate his constitutional right against self-incrimination. Petitioner next complains that the prosecution suppressed evidence vital to his defense when it refused to divulge the name of an “informer.” There is no merit to this contention. The so-called informer referred to is Edward Davis, now deceased. This is the man who, at the request of the investigating officers, went to the door of petitioner’s home merely to ascertain whether or not the petitioner was at home. He knew nothing of the crimes that had been committed and had no knowledge of the reasons for the investigation. His sole role in the affair was to let the police officers know whether or not petitioner was at home before they attempted to confront him. At the trial petitioner, through his attorney, demanded to know the name of this so-called informer. Officer Chester Gros, one of the investigating officers," }, { "docid": "2689918", "title": "", "text": "was contrary to, or an unreasonable application of, Supreme Court precedent for the OCCA to hold that the in-court identification was admissible, when the witness first identified Young during an impermissibly suggestive pre-trial, one-person “show-up.” Second, he argues that the OCCA’s holding that the identification was reliable was based on an unreasonable determination of the facts in light of the record. At trial, the government offered testimony by Karl Robinson that Young was the shorter of the two men he saw walk into the Steak House. Robinson further testified that he identified Young as the shorter man at the hospital shortly after the crime occurred. Counsel for Young objected to the reliability of this testimony, arguing that the suggestive nature of the show-up procedure used to obtain Robinson’s initial identification tainted his testimony and rendered it inadmissible. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court addressed whether a severely injured victim’s identification of the defendant shortly after the crime was unnecessarily suggestive, and thus inadmissible, when the police brought the defendant to the hospital and asked the victim if “he was the man.” Id. at 295, 301-02, 87 S.Ct. 1967. Defendant claimed the process was “so unnecessarily suggestive and conducive to irreparable mistaken identification that [defendant] was denied due process of law.” Id. at 302, 87 S.Ct. 1967. Although the Court recognized that the “practice of showing, suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,” it nonetheless held that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” Id. The Court found that at the time the defendant was brought to the hospital, the officers were “[f]aced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that [the victim, who had been seriously wounded,] could not visit the jail.” Id. Under the totality of the circumstances, the Court held the identification was admissible. Id. Ten years later, the" }, { "docid": "22193850", "title": "", "text": "at the time of this confrontation neither the parents of petitioner nor any attorney acting for him had been advised of the intended meeting with Mrs. Beamer. The indictment followed. At the trial the daughter testified to what she had seen the evening of the rape, but was unable to identify petitioner as the rapist. The only evidence connecting him with the rape was Mrs. Beamer’s station-house identification. She did not identify him in the courtroom. She testified that she had identified him by his size, his voice, his smooth skin, and his bushy hair. Three of the five police officers who were present at the identification testified over objection in corroboration of Mrs. Beamer’s reaction at the confrontation. This procedure of identification violates, of course, United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263. Those were cases of lineups and this was not. Yet, though they recognized a suspect’s right to counsel at that critical stage, the Court announced they would not have retroactive effect. Stovall v. Denno, 388 U. S. 293, and Simmons v. United States, ante, p. 377, make it clear, however, that independent of any right to counsel claim, a procedure of identification may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” that due process of law is denied when evidence of the identification is used at trial. Stovall v. Denno, supra, at 302. The claim that Mrs. Beamer’s identification of petitioner falls within this rule “must be evaluated in light of the totality of surrounding circumstances” with the view of determining if the procedure in petitioner’s case “was so unduly prejudicial as fatally to taint his conviction.” Simmons v. United States, supra. In Simmons, identification by use of photographs rather than a lineup was upheld because the bank rob bers were still at large, the FBI had to quickly determine whether it was on the right track in looking for Simmons, the witnesses’ memories were fresh since the robbery was but a day old, and because the photos pictured persons in addition to petitioner. In Stovall," } ]

[ { "docid": "5405079", "title": "", "text": "“technical field”); Bilski, 561 U.S. at 601, 130 S.Ct. 3218 (“Congress took this permissive approach to patent eligibility to ensure that ingenuity should receive a liberal encouragement.”) (internal quotation marks omitted). In DDR, Judge Chen similarly upheld under § 101 scrutiny, an invention that addressed the challenge of retaining website visitors that was specific to the internet, as opposed to the “performance of a business practice known prior to the ‘pre-internet world.’ ” DDR, 773 F.3d at 1257. Although the patent claimed a solution “rooted in computer technology,” Judge Chen found the hybrid functionality of the invention constituted inventive concept. Id. This holding was reinforced by the fact that the claims addressed the problem of retaining website visitors otherwise instantly transported away from a website after “clicking” on an advertisement. Id. While the invention at issue in DDR was in the software field, that decision establishes that inventive concept can be established by something more than “conventional functioning” that targets and improves existing technological processes for a specific problem in field of the invention. Id.; see also Wavetronix LLC v. Iteris, Inc., No. A-14-CA-970-SS, 2015 WL 300726, at *6 (W.D.Tex. Jan. 22, 2015) (citing Alice, 134 S.Ct. at 2358). Here, the '680 specification states that previous urine protocols were restricted in their application because they could only test for positive or negative results as to the “presence or absence of a drug metabolite in urine.” ('680 patent at 2:64-67.) This problem was described as a “major difficulty” in the art because of the “large amount of variance in urine drug concentrations, mostly due to variations in hydration and urinary output volume.” ('680 patent at 1:51-52.) In addressing the problem, the inventors coupled the normalization step with the comparative step, allowing for more accurate assessment of aberrant drug use. Nothing in Millennium’s summary judgment materials rebuts what was plainly identified on the face of the specification as a problem in the field, nor directly rebuts the solution that the patent provided. This is telling. Just as the patent in DDR was deemed eligible because it solved a “problem specifically arising in" } ]

[ { "docid": "5405071", "title": "", "text": "to both and plaintiffs are happy to argue § 101 using the stronger of its two patents. Be cause the '895 patent is invalid for lack of enablement, the analysis here will also focus on the '680 patent, although the likely implications for a similar analysis with respect to the '895 patent may at times be obvious. For the reasons set forth below, the court ultimately concludes that the claims in the '680 patent are patent eligible, while finding the broader claims in the '895 patent foreclose more future inventions than the inventors narrow discovery could reasonably justify. a. Step One of the Alice Framework At step one, the court determines “whether the claims at issue are directed to ineligible subject matter.” Alice, 134 S.Ct. at 2355. Millennium argues that the claims as a whole are directed to an abstract idea, but places particular emphasis on element (b) and element (f) of claim 1 and the related claims. The latter recites a comparison “of a person’s metabolite/creatinine ratio to ‘known normative data’ (a population of metabolite/creatinine ratios).” (Def.’s Opening Br. (dkt. # 130) 63-64.) Ameritox counters by pitching the invention at a more specific level, arguing that the claims are directed “to quantifying a metabolite concentration by adjusting the concentration for the patient’s hydration status and then statistically comparing the adjusted concentration to a set of known normative data.” (Id. at 87.) This, Ameritox argues, reflects the purpose of the invention — providing a method to improve medication monitoring and identifying aberrant drug-use. The court finds Millennium’s position more persuasive. While the skilled addressee would view comparative analysis of the invention as one that seeks to achieve a new and useful result over prior urine screening protocols, this new and useful result still rests upon an abstract idea, at least at some level. This finding is consistent with the recent BRCA1- decision, which also involved method claims. Specifically, the claims identified “a law of nature ([ie.] the precise sequence of BRCA genes and comparisons of wild-type BRCA sequences with certain mutations of those genes found in the test subject) and" }, { "docid": "5579666", "title": "", "text": "at 2357. A claim contains an inventive concept if it “indudets] additional features” that are more than “well-understood, routine, conventional activities.” Id. at 2357, 2359 (internal quotation marks, brackets, and citations omitted). The District Court held that the Asserted Claims lack an inventive concept because they recite general computer and technological components “like ‘processor,’ ‘hash identifier,’ ‘identifying token,’ and ‘writeable memory,’ the technical details of which'are not described.” ■ SSI, 2015 WL 4184486, at’*6. As a result, the District Court held that “[i]nvoking various computer hardware elements, which save time by carrying out a validation function on site rather than remotely, does not change the fact that in substance, the claims are still directed to nothing more than running a bankcard sale—that is, the performance of an abstract business practice.” Id. at *5 (internal quotation marks and citation omitted). We agree. SSI argues that the District Court erred in its analysis under Alice step two. SSI alleges that the Asserted Claims “solv[e] technological problems in conventional industry practice,” such that they disclose an inventive concept. Appellant’s Br. 53 (capitalization modified); see id. at 53-56. It further avers that the Asserted Claims “reflect an unconventional way to. make an electronic process better,” id. at 59, and that the Asserted Claims “address specific technology challenges that arose uniquely in the transit sector,” id. at 61. In support of its position, SSI cites Diamond v. Diehr, 450 U.S. 175, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981), and DDR Holdings, 773 F.3d 1245. See id. at 53-54. The Asserted Claims fail to provide an inventive concept. The ’003 patent teaches the use of a “processor,” an “interface,”- “memory,” and “data,” including “hash identifier^].” ’003‘ patent col. 14 1. 58-col. 15 1, 14 (claim 1), col. 16 11. 13-18 (claim 16); see .id. col. 15 1. 50-col. 16 1. 6 (claim 14) (discussing the use of, inter alia, “a processing system” and “data”). So too does the ’617 patent. ’617 patent col. 11 11. 7-29 (claim 1); see id. col. 111. 62-col. 12 1. 18 (claim 13) (discussing the use of, inter alia, “a processing" }, { "docid": "23463291", "title": "", "text": "idea.” See Enfish, LLC v. Microsoft Corp., No. 2015-2044, 822 F.3d 1327, 1335, 2016 WL 2756255 (Fed.Cir. May 12, 2016). We contrasted claims “directed to an improvement in the functioning of a computer” with claims “simply adding conventional computer components to well-known business practices,” or claims reciting “use of an abstract mathematical formula on any general purpose computer,” or “a purely conventional computer implementation of a mathematical formula,” or “generalized steps to be performed on a computer using conventional computer activity.” Id. at 1338. Contrary to TLI’s arguments on appeal, the claims here are not directed to a specific improvement to computer functionality. Rather, they are directed to the use of conventional or generic technology in a nascent but well-known environment, without any claim that the invention reflects an inventive solution to any problem presented by combining the two. According to the '295 patent, the problem facing the inventor was not how to combine a camera with a cellular telephone, how to transmit images via a cellular network, or even how to append classification information to that data. Nor was the problem related to the structure of the server that stores the organized digital images. Rather, the inventor sought to “provid[e] for recording, administration and archiving of digital images simply, fast and in such way that the information therefore may be easily tracked.” '295 patent, col. 1 11. 62-65. The specification does not describe a new telephone, a new server, or a new physical combination of the two. The specification fails to provide any technical details for the tangible components, but instead predominately describes the system and methods in purely functional terms. For example, the “telephone unit” of the claims is described as having “the standard features of a telephone unit,” id. at col. 5 11. 54-58, with the addition of a “digital image pick up unit for recording images,” id. at col. 5 11. 58-61, that “operates as a digital photo camera of the type which is known,” id. at col. 6. 11. 1-2. Put differently, the telephone unit itself is merely a conduit for the abstract idea of" }, { "docid": "23463296", "title": "", "text": "dates and times, to images for the purpose of storing those images in an organized manner is a well-established “basic concept” sufficient to fall under Alice step 1. Lastly, although the claims limit the abstract idea to a particular environment — a mobile telephone system — that does not make the claims any less abstract for the step 1 analysis. See OIP Techs., 788 F.3d at 1362-63. B Turning to the second step in our analysis, we find that the claims fail to recite any elements that individually or as an ordered combination transform the abstract idea of classifying and storing digital images in an organized manner into a patent-eligible application of that idea. It is well-settled that mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea. Rather, the components must involve more than performance of “ ‘well-understood, routine, conventional activit[ies]’ previously known to the industry.” Alice, 134 S.Ct. at 2359 (quoting Mayo, 132 S.Ct. at 1294). We agree with the district court that the claims’ recitation of a “telephone unit,” a “server”, an “image analysis unit,” and a “control unit” fail to add an inventive concept sufficient to bring the abstract idea into the realm of patentability. As an initial matter, TLI argues that, even if known in the prior art, the components recited in the claims cannot be “conventional” within the meaning of the Alice absent fact-finding by the court. While we must be mindful of extraneous fact finding outside the record, particularly at the mo tion to dismiss stage, here we need to only-look to the specification, which describes the telephone unit and server as either performing basic computer functions such as sending and receiving data, or performing functions “known” in the art. In other words, as will be discussed below, the claimed functions are “well-understood, routine, activities]’ previously known to the industry.” Id. at 2359 (quoting Mayo, 132 S.Ct. at 1294). We turn first to the “telephone unit.” The claims identify a telephone unit with a digital pick up device. In its briefing, TLI suggests that this is" }, { "docid": "16978758", "title": "", "text": "§ 101 analysis if it involved more than the performance of “well-understood, routine, [and] conventional activities previously known to the industry.” Id. (quoting Alice, 134 S.Ct. at 2359). The court noted that all of the limitations at issue involved well-known, routine, and conventional functions of computers and scanners. Id. at 1348-49. The claims were ineligible. More recently, in In re TLI, the court examined a representative claim that recited: A method for recording and administering digital images, comprising the steps of: recording images using a digital pick up unit in a telephone unit, storing the images recorded by the digital pick up unit in a digital form as digital images, trahsmitting data including at least the digital images and classification information to a server, wherein said classification information is- prescribable by a user of the telephone unit for allocation to the digital images, receiving the data by the server, extracting classification information which characterizes the digital images from the received data, and storing the digital images in the server, said step of storing taking into consideration the classification information. In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 610 (Fed. Cir. 2016). Under step one, the court found that the claims were directed to the abstract idea of “classifying and storing digital images in an organized manner.” Id. at 613. Also under step one, the court found that the claims were not directed to a specific improvement in computer functionality, but instead were directed to the “use of conventional or generic technology in a nascent, but well-known environment, without any claim that the invention reflected] an inventive solution to any problem presented by combining the two.” Id. at 612. Under step two, the court found that the claims did not recite any limitations that when considered individually and as an ordered combination transformed the abstract idea into a patent-eligible application of that idea. Instead, the recited components and functions were well-understood, routine, conventional activities previously known in the industry. See id. at 613-14. The components were described in “vague, functional” terms that were insufficient to confer eligibility and failed" }, { "docid": "16978771", "title": "", "text": "in an unconventional distributed fashion to solve a particular technological problem. Claim 1 is therefore distinct from the ineligible claims in Digitech, Content Extraction, and In re TLI Commc’ns. The claim in Digitech was not tied to any particularized structure, broadly preempted related technologies, and merely involved combining data in an ordinary manner without any inventive concept. See 758 F.3d at 1350-51. In contrast, claim 1 of the ’065 patent is tied to a specific' structure of various components (network devices, gatherers, ISMs, a central event manager, a central database, a user interface server, and terminals or clients). It is narrowly drawn to not preempt any and all generic enhancement of data in a similar system, and does not merely combine the components in a generic manner, but instead purposefully arranges the components in a distributed architecture to achieve a technological solution to a technological problem specific to computer networks. See ’065 patent at 4:29-33, 4:43-54, 3:56-65, 4:33-42, 7:51-57, 10:45-50, 7:7-8, 7:62-67,11:1-7. Similarly, claim 1 is distinct from the representative claim in Content Extraction, which ■ involved the generic, well-known steps of collecting data, recognizing data, and storing data. See 776 F.3d at 1347. Unlike the claim in Content Extraction, claim 1 of the ’065 patent depends upon a specific enhancing limitation that necessarily incorporates the invention’s distributed architecture—an architecture providing a technological solution to a technological problem. This provides the requisite ‘something more’ than the performance of “well-understood, routine, [and] conventional activities previously known to the industry.” See id. at 1347-48 (quoting Alice, 134 S.Ct. at 2359). Claim 1 is similar to the claims in DDR Holdings and BASCOM. As in DDR Holdings, when the claim limitations were considered individually and as an ordered combination, they recited an invention that is not merely the “routine or conventional use” of technology. 773 F.3d at 1259. Here, claim 1 solves a technological problem (massive data flows requiring huge databases) akin to the problem in DDR Holdings (conventional Internet hyperlink protocol preventing websites from retaining visitors). Cf. Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1371 (Fed. Cir." }, { "docid": "5405076", "title": "", "text": "medication regimen, wherein the sample comprises at least one test metabolite, urine; (b) providing one set of known normative data specific to a reference metabolite, wherein the set of data is collected from a population that is on a prescribed medication regimen; (c) contacting the biological sample with an analytical device; (d) detecting the presence of at least one test metabolite in the biological sample with the device, wherein the device is capable of measuring the concentration of the test metabolite in the sample; (e) normalizing the biological sample to adjust for changes in the patient’s hydration status by determining the metabolite/creatinine ratio of the patient; and (f) quantifying the concentration of at least one test metabolite in the biological sample by comparing a ratio between the concentration of the test metabolite from the patient 'to the set of known normative data specific to the reference metabolite concentration. ('680 patent at 21:9-32.) For ease of reference, elements (a)-(d) will be described as the “detection” steps. Element (e) will be described as the “normalization” step. Element (f) will be described as the “comparative” step. Millennium argues that the claims are conventional because they “direct medical professionals to measure the level of a drug metabolite, to normalize data via a creatinine ratio, and then to compare that value against the creatinine ratios of a population of individuals.” (Def.’s Opening Br. (dkt. # 130) 78.) Millennium further argues that because these elements are conventional, the invention lacks an “inventive concept” beyond the abstract idea itself. Ameritox’s position is more nuanced. Ameritox argues that the claim elements are unconventional because the asserted claims are drawn to specific methods of monitoring medication through normalization and quantification of metabolites in a urine sample. Ameritox contends that these steps contain an inventive concept because the process described seeks to implement a novel solution to a pre-exist-ing problem in the field. (Pl.’s Opp’n (dkt. # 172) 99.) Indeed, much of Ameritox’s argument centers on the fact that: (1) the invention produces an improved result over existing technology; and (2) the necessary inventive concept is combining the normalization step" }, { "docid": "23463299", "title": "", "text": "organized manner is carried out. Likewise, the server fails to add an inventive concept because it is simply a generic computer that “administer[s]” digital images using a known “arbitrary data bank system.” Id. at col. 5 ll. 45-46. But “[f]or the role of a computer in a computer-implemented invention to be- deemed meaningful in the context of this analysis, it must involve more than performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’ ” Content Extraction, 776 F.3d at 1347-48 (quoting Alice, 134 S. Ct. at 2359). Here, the server simply receives data, “extracts] classification information ... from the received data,” and “stor[es] the digital images ... taking into consideration the classification information.” See '295 patent, col. 1011.1-17 (Claim 17). These steps fall squarely within our precedent finding generic computer components insufficient to add an inventive concept to an otherwise abstract idea. Alice, 134 S.Ct. at 2360 (“Nearly every computer will include a ‘communications controller’ and a ‘data storage unit’ capable of performing the basic calculation, storage, and transmission functions required by the method claims.”); Content Extraction, 776 F.3d at 1345, 1348 (“storing information” into memory, and using a computer to “translate the shapes on a physical page into typeface characters,” insufficient confer patent eligibility); Mortg. Grader, 811 F.3d at 1324-25 (generic computer components such as an “interface,” “network,” and “database,” fail to satisfy the inventive concept requirement); Intellectual Ventures I, 792 F.3d at 1368 (a “database” and “a communication medium” “are all generic computer elements”); BuySAFE v. Google, Inc., 765 F.3d 1350, 1355 (Fed.Cir.2014) (“That a computer receives and sends the information over a network— with no further specification — is not even arguably inventive.”). Dependent claims 10 and 11 respectively recite an “image analysis unit for determining quality of the digital images” and a “control unit for controlling resolution of digital images.” These components purportedly analyze the image data sent from the telephone unit to determine the quality of the image sent, and if certain criteria are met, instruct the telephone unit to resend the image. While these units purport to add additional functionality to" }, { "docid": "5405072", "title": "", "text": "metabolite/creatinine ratios).” (Def.’s Opening Br. (dkt. # 130) 63-64.) Ameritox counters by pitching the invention at a more specific level, arguing that the claims are directed “to quantifying a metabolite concentration by adjusting the concentration for the patient’s hydration status and then statistically comparing the adjusted concentration to a set of known normative data.” (Id. at 87.) This, Ameritox argues, reflects the purpose of the invention — providing a method to improve medication monitoring and identifying aberrant drug-use. The court finds Millennium’s position more persuasive. While the skilled addressee would view comparative analysis of the invention as one that seeks to achieve a new and useful result over prior urine screening protocols, this new and useful result still rests upon an abstract idea, at least at some level. This finding is consistent with the recent BRCA1- decision, which also involved method claims. Specifically, the claims identified “a law of nature ([ie.] the precise sequence of BRCA genes and comparisons of wild-type BRCA sequences with certain mutations of those genes found in the test subject) and applied conventional techniques” to determine a patient’s propensity to cancer. See BRCA1- 774 F.3d at 761. In finding in favor of the defendant, the BRCAl- court held that the comparative analysis of the invention “recite[d] . abstract ideas.” Id. at 762. Because the present case ' involves a comparative analysis like that found in BRCAl, Millennium satisfies step one of the Alice framework. Id.; see also Bilski v. Kappos, 561 U.S. 593, 611-12, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010) (characterizing abstract idea as “the concept of hedging” where claim limitations described initiating transactions and identifying market participants); Alice, 134 S.Ct. at 2356 (characterizing abstract concept as “in-termediated settlement” despite claim elements reciting use of shadow credit records and debit records); buySAFE Inc. v. Google, Inc., 765 F.3d 1350, 1354-55 (Fed.Cir.2014) (holding that “[t]he claims are squarely about creating a contractual relationship” despite presence of more specific claim limitations); Ultramercial, 772 F.3d at 715 (holding that “the concept embodied by the majority of the limitations describes only the abstract idea of showing an advertisement before" }, { "docid": "2594543", "title": "", "text": "patents directed to a method of (1) extracting data from hard copy documents using an automated digitizing unit such as a scanner, (2) recognizing specific information from the extracted data, and (3) storing that information in memory. Id. at 1345. The method could be used, for example, in an automated teller machine that recognizes information on a scanned check. The Content Extraction court held that the claims before it were drawn to the abstract idea of data recognition and storage. Id. at 1346-47. In analyzing the “inventive concept” step,- the court looked to whether the claims involved “more than performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’ ” Id. at 1347-48 (quoting Alice, 134 S.Ct. at 2359). The court held that they did not. Rather, it noted, the claims merely recited the use of existing scanning and processing technology to recognize and' store data from specific data fields. Id. at 1348. Because it concluded that “the basic character of [the plaintiffs] claims is the abstract idea of extracting and storing data from hard copy documents using generic scanning and pro cessing technology,” the court held the claims patent-ineligible. Id. at.1349. The court in Content Extraction also held that dependent claims that added “well-known, routine, and conventional functions” did not transform the abstract idea into a patentable invention. Id. at 1349. The dependent claims at issue in that case closely parallel the dependent claims at issue in this one; like the dependent claims in Content Extraction, the dependent claims of the ’379 patent all recite functions that are not inventive but . simply constitute particular choices from within the range of existing content or hardware, such as specifying that the regional broadcast is FM radio or video content, that the graphical user interface displays song information, or that the storage medium buffers content. A second case addressing the “inventive concept” step in an analogous context is Mortgage Grader, Inc. v. First Choice Loan Services, Inc., 811 F.3d 1314 (Fed. Cir. 2016). The claims in that case were directed to a computer-implemented system for. enabling borrowers to shop" }, { "docid": "9659360", "title": "", "text": "Grader, 811 F.3d at 1324-25 (holding that “generic computer components such as an ‘interface,’ ‘network,’ and ‘database’ ... do not satisfy the inventive concept requirement.”); Bancorp Servs., 687 F.3d at 1278 (“To salvage an otherwise patent-ineligible process, a computer must be integral to the claimed invention, facilitating the process in a way that a person making calculations or computations could not.”). Similarly, “[i]t is well-settled that mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea” where those components simply perform their “well-understood, routine, conventional” functions. In re TLI Commc’ns., 823 F.3d at 613 (limitations of “telephone unit,” “server,” “image analysis unit,” and “control unit” insufficient to satisfy Alice step two where claims drawn to abstract idea of classifying and storing digital images in an organized manner) (quotation marks omitted). In addition, the U.S. Supreme Court explained in Bilski that “limiting an abstract idea to one field of use or adding token postsolution components [does] not make the concept patentable.” 561 U.S. at 612, 130 S.Ct. 3218 (citing Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978)); see also Alice, 134 S.Ct. at 2358 (same). The Federal Circuit has similarly stated that attempts “to limit the use of the abstract idea to a particular technological environment” are insufficient to render an abstract idea patent eligible. Ultramercial, 772 F.3d at 716 (quotation marks omitted); see also Intellectual Ventures, 792 F.3d at 1366 (“An abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment, such as the Internet.”). In keeping with these restrictions, the Federal Circuit has found that claims “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks” can be sufficiently transformative to supply an inventive concept. DDR, 773 F.3d at 1257 (claims that addressed the “Internet-centric problem” of third-party merchant advertisements that would “lure .,. visitor traffic away” from a host website amounted to an inventive concept). In addition, a “non-conventional and non-generic arrangement of known, conventional pieces” can amount" }, { "docid": "5405019", "title": "", "text": "as reflected in step (f) of the '680 patent). By comparing the patient’s normalized value to a range of values for other clinical patients believed to be prescribed and taking the same medication properly, the health care provider can better assess whether a patient is likely to be taking the prescribed drug in a manner consistent with the. prescribed regimen. The three steps outlined above largely truncate the steps outlined in claim 1 of the '680 patent, which states: 1. A method for quantifying at least one metabolite in a biological sample comprising the steps of: (a) providing one biological sample obtained -from a patient on a prescribed medication regimen, wherein the sample comprises at least one test metabolite, wherein in the sample is urine; (b) providing one set of known normative data specific to a reference metabolite, wherein the set of data is collected from a population that is on a prescribed medication regimen; (c) contacting the biological sample with an analytical device; (d) detecting the presence of at least one test metabolite in the biological sample with the device, wherein the device is capable of measuring the concentration of the test metabolite in the sample; (e) normalizing the biological sample to adjust for changes in the patient’s hydration status by determining the metabolite/creatinine ratio of the patient; and (f) quantifying the concentration of at least one test metabolite in the biological sample by comparing a ratio between the concentration of the test metabolite from the patient to the set of known normative data specific to the reference metabolite concentration. ('680 patent at 21:9-82.) III. The Specification, Prosecution History and Reexamination Certificates The patents-in-suit have a priority date of August 28, 2003, and cover a method to monitor medication usage and to detect aberrant drug usage patterns, including overuse and under-use of prescribed medications. ('680 patent at ABSTRACT.) The patents share the same specification, which states that adherence to a prescribed medication regimen is important to the success of most treatments, “particularly in patients in drug abuse or chronic pain programs.” (Id. at 1:21-24.) The specification further describes a" }, { "docid": "5405081", "title": "", "text": "the realm of computer networks,” so, too, does the '680 patent solve a unique problem with respect to drug testing technology. See DDR, 773 F.3d at 1257; Cal. Inst. of Tech., 59 F.Supp.3d at 1000, 2014 WL 5661290, at *20 (“ § 101 protects a unique computing solution that addresses a unique computing problem”); cf. Alice, 134 S.Ct. at 2359 (“The method claims do not ... purport to improve the functioning of the computer itself.”). • Second, Millennium’s analysis of the second Alice step to the '680 patent is flawed. As an initial matter, Millennium argues that the comparative step must be filtered out of the analysis when looking at a combination patent, because it is either a “known method” or “an unpatentable ... process.” (Def.’s Opening Br. (dkt. # 130) 78.) But there is nothing in Alice suggesting that any steps are “filtered out” when considering a combination patent. To the contrary, the invention in Alice was considered as “a whole” when assessing the second step of the framework. 134 S.Ct. at 2359 (“Considered as an ordered combination [and] ... [v]iewed as a whole, petitioner’s method claims simply recite the concept of intermediated settlement as performed by a generic computer.” (internal quotations omitted, emphasis added)). Alternatively, Millennium argues that instead of ignoring the comparative step, the detection and normalization steps must be discounted because they exist in the prior art, leaving only an abstract idea at the comparative step. (Def.’s Opening Br. (dkt. # 130) 78.) Essentially, Millennium appears to assert that any additional steps beyond the abstract idea do not elevate the claim to “inventive concept,” because each step was either “established” or “conventional.” (Id.) Not so under Alice. Specifically, looking at the normalization step, Millennium merely relies on its proposed finding that: “Normalizing urine samples [had] been routine and conventional practice for over 40 years.” (Dr. Alan H. Wu Invalidity Report (“Wu Invalidity Rept.”) (dkt. # 115) ¶ 112.) To support this proposed finding, Millennium infers that because creatinine normalization was mentioned in the George article, someone skilled in the art would know to simply combine the" }, { "docid": "5405077", "title": "", "text": "(f) will be described as the “comparative” step. Millennium argues that the claims are conventional because they “direct medical professionals to measure the level of a drug metabolite, to normalize data via a creatinine ratio, and then to compare that value against the creatinine ratios of a population of individuals.” (Def.’s Opening Br. (dkt. # 130) 78.) Millennium further argues that because these elements are conventional, the invention lacks an “inventive concept” beyond the abstract idea itself. Ameritox’s position is more nuanced. Ameritox argues that the claim elements are unconventional because the asserted claims are drawn to specific methods of monitoring medication through normalization and quantification of metabolites in a urine sample. Ameritox contends that these steps contain an inventive concept because the process described seeks to implement a novel solution to a pre-exist-ing problem in the field. (Pl.’s Opp’n (dkt. # 172) 99.) Indeed, much of Ameritox’s argument centers on the fact that: (1) the invention produces an improved result over existing technology; and (2) the necessary inventive concept is combining the normalization step with the detection and comparative steps. As to the '680 patent, the court agrees. First, when the invention is examined as an ordered combination, the combination of steps produces a new and useful result. 35 U.S.C. § 101 (the patent statute provides protection for “any new and useful process”). The instant case shares similarities with Diehr in this respect. In both cases, the subject patents are directed to abstract ideas that improve pre-existing technology. Specifically, like the rubber curing improvements taught in the Diehr patent, new improvements are similarly taught in the '680 patent (albeit with respect to drug compliance monitoring). Indeed, each additional step taught directs the skilled addressee to an invention that allows quantifiable analysis of urine samples to determine a patient’s compliance with a prescribed drug regimen. This type of improvement in existing technology is the type of invention that the statute seeks to encourage, not dismiss. 450 U.S. at 183, 101 S.Ct. 1048; see also Alice, 134 S.Ct. at 2359 (looking at improvements in the “functioning” of a computer and the" }, { "docid": "5405020", "title": "", "text": "the biological sample with the device, wherein the device is capable of measuring the concentration of the test metabolite in the sample; (e) normalizing the biological sample to adjust for changes in the patient’s hydration status by determining the metabolite/creatinine ratio of the patient; and (f) quantifying the concentration of at least one test metabolite in the biological sample by comparing a ratio between the concentration of the test metabolite from the patient to the set of known normative data specific to the reference metabolite concentration. ('680 patent at 21:9-82.) III. The Specification, Prosecution History and Reexamination Certificates The patents-in-suit have a priority date of August 28, 2003, and cover a method to monitor medication usage and to detect aberrant drug usage patterns, including overuse and under-use of prescribed medications. ('680 patent at ABSTRACT.) The patents share the same specification, which states that adherence to a prescribed medication regimen is important to the success of most treatments, “particularly in patients in drug abuse or chronic pain programs.” (Id. at 1:21-24.) The specification further describes a number of sources used by health care professionals to monitor medication usage, including interviews with patients, medical records, pill counts, prescription monitoring programs, and testing of biological samples, such as urine. (Id. at 1:42-48, 15:11-15.) The specification also states that urine drug screens available in 2003 were limited to reporting a positive or negative result because of “the large amount of variability in urine drug concentrations, mostly due to variations in hydration and urinary output volume.” (Id. at 1:50-53.) Both patents highlight problems with-purely “up or down” test results. In particular, so long as patients took some amount of medication, their test results were positive and patients who overused or underused their medications continued to receive the same prescription: To date, a test is purely negative or positive as to the presence or absence of a drug metabolite in the urine. Accordingly, it would be useful to develop a method to assess with confidence patient adherence to prescribed drug treatment regimens. (Id. at 2:61-3:3 (emphasis added).) In light of the problems in the prior art," }, { "docid": "5405018", "title": "", "text": "plan, as well as to detect aberrant behaviors (e.g., illegal drug use) that may complicate treatment. ('680 patent at 2:17-20.) On May 16, 2011, Ameritox launched its current Rx Guardian CD service, which Ameritox asserts is based on the patents-in-suit. The testing protocol for Rx Guardian CD has three phases. (Dr. Paul J. Orsulak Rebuttal Report (“Orsulak Rebuttal Rept.”) (dkt. #118) ¶¶ 246-56.) First, Ameritox performs a series of laboratory tests to detect and measure the amount of drug and drug metabolites in a patient’s urine sample (the “detection” steps, which are reflected in steps (a)-(d) of the '680 patent). Second, Ameritox “normalizes” or “adjusts” urine drug levels for a patient’s hydration status by determining the metabolite/creatinine ratio of the patient (the “normalization” step, as reflected in step (e) of the '680 patent). Third, the Rx Guardian CD protocol compares a patient’s normalized test results to a range of “normative data” collected from other clinical patients on the same medication, who Marshfield carefully monitored to insure adherence to their prescribed opioid regimen (the “determining” step, as reflected in step (f) of the '680 patent). By comparing the patient’s normalized value to a range of values for other clinical patients believed to be prescribed and taking the same medication properly, the health care provider can better assess whether a patient is likely to be taking the prescribed drug in a manner consistent with the. prescribed regimen. The three steps outlined above largely truncate the steps outlined in claim 1 of the '680 patent, which states: 1. A method for quantifying at least one metabolite in a biological sample comprising the steps of: (a) providing one biological sample obtained -from a patient on a prescribed medication regimen, wherein the sample comprises at least one test metabolite, wherein in the sample is urine; (b) providing one set of known normative data specific to a reference metabolite, wherein the set of data is collected from a population that is on a prescribed medication regimen; (c) contacting the biological sample with an analytical device; (d) detecting the presence of at least one test metabolite in" }, { "docid": "5579665", "title": "", "text": "as the dissent argues. Dissent at 1379,1380,1381, 1381. Here, regardless of whether the claims teach a financial transaction, when properly considered, it is evident that the claims are directed to the collection, analysis, and classification of information, and not access alone. See Dissent at 1381 (stating ipse dixit that “[t]he claims 'call for much more in making practical use of data from a conventional bank card to gain access to a transit system”); see id. at 1381-83 (discussing collection of data through the combination of various components of the claimed invention). The dissent also conflates its Alice step one analysis with Alice step two’s inventive concept analysis, ignoring the Supreme Court directive that the Alice .test is a two-step inquiry. Dissent at 1382-83. C. The Asserted Claims Do Not Recite an Inventive Concept The second step of the § 101 analysis requires us to determine whether the claim elements, .when viewed individually and as an ordered combination, contain “an inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application.” Alice, 134 S.Ct. at 2357. A claim contains an inventive concept if it “indudets] additional features” that are more than “well-understood, routine, conventional activities.” Id. at 2357, 2359 (internal quotation marks, brackets, and citations omitted). The District Court held that the Asserted Claims lack an inventive concept because they recite general computer and technological components “like ‘processor,’ ‘hash identifier,’ ‘identifying token,’ and ‘writeable memory,’ the technical details of which'are not described.” ■ SSI, 2015 WL 4184486, at’*6. As a result, the District Court held that “[i]nvoking various computer hardware elements, which save time by carrying out a validation function on site rather than remotely, does not change the fact that in substance, the claims are still directed to nothing more than running a bankcard sale—that is, the performance of an abstract business practice.” Id. at *5 (internal quotation marks and citation omitted). We agree. SSI argues that the District Court erred in its analysis under Alice step two. SSI alleges that the Asserted Claims “solv[e] technological problems in conventional industry practice,” such that they disclose an inventive concept." }, { "docid": "5405017", "title": "", "text": "in the field of pain medication monitoring, including a provider of urine drug testing (“UDT”) services. Ameritox is the exclusive licensee of the patents-in-suit pursuant to an exclusive license agreement between Am-eritox and Marshfield dated March 15, 2010. In exchange for an exclusive license, Ameritox agreed to make certain royalty payments to Marshfield and to use good faith commercial efforts to develop, market, and sell a drug testing service based on the asserted patents. II. The Testing Protocols Ameritox tests urine samples on behalf of doctors, nurses, and other health-care providers who prescribe pain medications to treat chronic pain. (Am. Compl. (dkt. # 106) ¶¶ 7.) Ameritox describes its UDT service as being able to “help clinicians assess whether patients are correctly taking medications and whether the prescrip tion .should be adjusted.” (Dr. Paul J. Orsulak Infringement Report (“Orsulak Infringement Rept.”) (dkt. # 117) ¶¶ 27.) Healthcare professionals periodically use Ameritox’s services to monitor drug levels in their patients in order to help assess their patients’ therapeutic response to medications and adherence to the treatment plan, as well as to detect aberrant behaviors (e.g., illegal drug use) that may complicate treatment. ('680 patent at 2:17-20.) On May 16, 2011, Ameritox launched its current Rx Guardian CD service, which Ameritox asserts is based on the patents-in-suit. The testing protocol for Rx Guardian CD has three phases. (Dr. Paul J. Orsulak Rebuttal Report (“Orsulak Rebuttal Rept.”) (dkt. #118) ¶¶ 246-56.) First, Ameritox performs a series of laboratory tests to detect and measure the amount of drug and drug metabolites in a patient’s urine sample (the “detection” steps, which are reflected in steps (a)-(d) of the '680 patent). Second, Ameritox “normalizes” or “adjusts” urine drug levels for a patient’s hydration status by determining the metabolite/creatinine ratio of the patient (the “normalization” step, as reflected in step (e) of the '680 patent). Third, the Rx Guardian CD protocol compares a patient’s normalized test results to a range of “normative data” collected from other clinical patients on the same medication, who Marshfield carefully monitored to insure adherence to their prescribed opioid regimen (the “determining” step," }, { "docid": "16978759", "title": "", "text": "consideration the classification information. In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 610 (Fed. Cir. 2016). Under step one, the court found that the claims were directed to the abstract idea of “classifying and storing digital images in an organized manner.” Id. at 613. Also under step one, the court found that the claims were not directed to a specific improvement in computer functionality, but instead were directed to the “use of conventional or generic technology in a nascent, but well-known environment, without any claim that the invention reflected] an inventive solution to any problem presented by combining the two.” Id. at 612. Under step two, the court found that the claims did not recite any limitations that when considered individually and as an ordered combination transformed the abstract idea into a patent-eligible application of that idea. Instead, the recited components and functions were well-understood, routine, conventional activities previously known in the industry. See id. at 613-14. The components were described in “vague, functional” terms that were insufficient to confer eligibility and failed to provide the requisite details to implement the claimed abstract idea. Id. at 615. The ineligible claims in the preceding cases may be contrasted with eligible claims in other cases. For example, in DDR Holdings, the court found that the asserted claims did not recite a step or function performed by a computerized mathematical algorithm but were instead focused on a challenge particular to the Internet. DDR Holdings, 773 F.3d at 1257. The representative claim recited: A system useful in an outsource provider serving web pages offering commercial opportunities, the system comprising: (a) a computer store containing data, for each of a plurality of first web pages, defining a plurality of visually perceptible elements, which visually perceptible elements correspond to the plurality of first web pages; (i) wherein each of the first web pages belongs to one of a plurality of web page owners; (ii) wherein each of the first web pages displays at least one active link associated with a commerce object associated with a buying opportunity of a selected one of a plurality" }, { "docid": "5405021", "title": "", "text": "number of sources used by health care professionals to monitor medication usage, including interviews with patients, medical records, pill counts, prescription monitoring programs, and testing of biological samples, such as urine. (Id. at 1:42-48, 15:11-15.) The specification also states that urine drug screens available in 2003 were limited to reporting a positive or negative result because of “the large amount of variability in urine drug concentrations, mostly due to variations in hydration and urinary output volume.” (Id. at 1:50-53.) Both patents highlight problems with-purely “up or down” test results. In particular, so long as patients took some amount of medication, their test results were positive and patients who overused or underused their medications continued to receive the same prescription: To date, a test is purely negative or positive as to the presence or absence of a drug metabolite in the urine. Accordingly, it would be useful to develop a method to assess with confidence patient adherence to prescribed drug treatment regimens. (Id. at 2:61-3:3 (emphasis added).) In light of the problems in the prior art, the specification goes on to state that: [t]he method of the present invention enables improved clinical accuracy of protocols used in testing biological samples, such as, urine testing [and] the present invention can substantially improve the ability of a clinician to monitor and confirm whether a patient has been using the medication in a manner which is consistent with the prescription. (Id. at 3:17-19, 4:50-54) (emphasis added). The specification thus describes a method to “improve” or “enhance” medication monitoring and seeks to identify aberrant drug use. (Id. at 3:17-19.) The description of the invention is also reflected in the prosecution history, including the inventors’ statement that: Applicants developed a normative database for the drug metabolite hydration corrected ratio that allows statistical analysis of drug metabolite level in urine to determine if the medication is utilized in a manner consistent with the prescription or what the potential dose may have been. (Declaration of Rebecca C. Mandel (“Man-del DedEx. 24 (dkt. # 129-24) pp. 14-15); see also id., Ex. 17 (dkt. # 129-17) p. 9.) By contrasting" } ]

[ { "docid": "22104579", "title": "", "text": "testified that he had been mistaken when he said that he had only visited Frankfurt and Munich and that he had also visited Vaduz. On December 9, 1975, Franklin Weber’s attorney telephoned one of the government’s attorneys in this case and informed him of what the government attorney already had reason to suspect, namely, that Franklin Weber had possession of the remaining letters of credit. Additional details and procedural matters necessary to an understanding of the various issues to be decided will be stated at appropriate places in the opinion. I. Severance Before discussing the specific attacks on the district court’s denial of sever anee, some general principles should be noted. The question of whether charges that have been properly joined ought to be severed for trial is for the discretion of the trial judge, whose decision will be reversed only upon a showing of clear abuse. United States v. Tanner, 471 F.2d 128, 137 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). The defendant has the burden of showing prejudice, which is a difficult one. Id. A denial of severance will rarely be reversed on review, Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), cert. denied, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969), and then only for the most “cogent reasons,” United States v. Kahn, 381 F.2d 824, 838 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). There is, moreover, a strong policy in favor of joint trial “where the charge against all the defendants may be proved by the same evidence and results from the same series of acts.” United States v. Cohen, 124 F.2d 164, 165 (2d Cir.), cert. denied sub nom. Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210 (1942). See also United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965) recently quoted in United States v. Harris, 542 F.2d 1283, 1312 (7th Cir.), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1976). In the case at bar all" } ]

[ { "docid": "23329931", "title": "", "text": "Weinrich, 586 F.2d 481, 495 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). Accordingly, joinder was proper in this case, since the indictment alleged a single conspiracy between Warner and the other defendants. Warner contends, however, that the district court should have ordered him tried separately because the joint trial was prejudicial to him. Rule 14, Fed.R.Crim.P., gives the district court the power to order a defendant tried separately where joinder will be prejudicial. It is well settled that a district judge’s denial of a motion for severance under Rule 14 is reversible only for an abuse of discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954); United States v. Frazier, 584 F.2d 790, 795 (6th Cir. 1978); United States v. Tarnowski, 583 F.2d 903, 905 (6th Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979). The defendant must make a showing of compelling prejudice before the trial court’s ruling denying a Rule 14 severance will be disturbed. See, e.g., United States v. Reed, 647 F.2d 678, 689 (6th Cir.), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981); United States v. Bright, 630 F.2d 804, 813 (5th Cir. 1980). Warner argues that he was prejudiced by the “spillover” effect of evidence against his three codefendants concerning transactions in which he was not involved. Specifically, Warner argues that he was prejudiced by McCarthy’s testimony that he and Schrock once tried unsuccessfully to “ripoff” Agent Pifer by selling him flour instead of cocaine, and that they planned on another occasion to rob Pifer. Warner also contends that he was prejudiced by testimony that appellant Ward made a death threat against Willette, the government’s informant. We agree that, when viewed in isolation, this testimony appears to be potentially prejudicial to Warner. However, after examining this evidence in the context of the entire trial, we conclude that" }, { "docid": "23329930", "title": "", "text": "limited use of co-conspirators’ declarations. We conclude that, although a multiple instruction would have been preferable, these instructions adequately informed the jury that Warner could only be convicted of a conspiracy alleged in the indictment of which he was a part. See United States v. Rodgers, 624 F.2d 1303, 1308 (5th Cir.), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1980); United States v. Watson, 594 F.2d 1330, 1340 (10th Cir. 1979), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1980). Warner’s final contention on appeal is that the district court committed reversible error in denying his pretrial motion for severance. Warner relies both on Rule 8 and on Rule 14, Fed.R.Crim.P. Rule 8(b), Fed.R.Crim.P., provides that joinder of defendants is permissible if they are alleged to have participated “in the same series of acts or transactions constituting an offense or offenses.” It is well settled that joinder is proper under Rule 8(b) where an indictment charges multiple defendants with participation in a single conspiracy. E.g., United States v. Weinrich, 586 F.2d 481, 495 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). Accordingly, joinder was proper in this case, since the indictment alleged a single conspiracy between Warner and the other defendants. Warner contends, however, that the district court should have ordered him tried separately because the joint trial was prejudicial to him. Rule 14, Fed.R.Crim.P., gives the district court the power to order a defendant tried separately where joinder will be prejudicial. It is well settled that a district judge’s denial of a motion for severance under Rule 14 is reversible only for an abuse of discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954); United States v. Frazier, 584 F.2d 790, 795 (6th Cir. 1978); United States v. Tarnowski, 583 F.2d 903, 905 (6th Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238," }, { "docid": "2368398", "title": "", "text": "We hold that the finding of the district court that there was no prejudice to the defendants as the result of the failure of the prosecution to produce the eight statements was not clearly erroneous. United States v. Chitwood, 457 F.2d 676, 678 (6th Cir.), cert. denied, 409 U.S. 858, 93 S.Ct. 141, 34 L.Ed.2d 103 (1972). The Severance Issue The defendants filed motions for severance, claiming that they were entitled to separate trials so that each could call as witnesses the other defendants who had made statements. This they could not do in the joint trial in which the persons giving the statements were co-defendants. The brief refers particularly to the statement of the defendant Ervin mentioned earlier in this opinion contending that the other defendants were denied their right of effective confrontation by being tried jointly with Ervin. As we have pointed out, the jury was not permitted to know the identify of anyone referred to in the Ervin statement. We believe that the trial court correctly ruled that the other defendants were not implicated by this statement and that the joint trial did not violate their constitutional right to confront witnesses against them. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). A motion under Rule 14, Fed.R.Crim. P., for relief from prejudicial joinder is directed to the sound discretion of the trial court and denial of severance is not grounds for reversal in the absence of an abuse of discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Vaughan, 422 F.2d 812 (6th Cir. 1970) ; United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310, 21 L.Ed.2d 279 (1968). It was pointed out in United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), that the general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and" }, { "docid": "4069054", "title": "", "text": "transcripts while listening to the tape recording. Furthermore, this method is impractical in cases such as this where the defendant has asserted his fifth amendment right to remain silent. Given the articulated standards, the transcripts utilized at trial bear little semblance of reliability. The transcriber could not have verified their accuracy because the transcripts were the product of a government conference where several agents offered their independent recollection of the taped conversations. We are convinced after listening to the master tape employed at trial that several of the conversations were so inaudible as to preclude transcription. Thus under the facts of this case, we view the district court’s decision to permit juror use of transcripts to be a manifest abuse of discretion. III. SEVERANCE Resolution of the transcript issue renders a lengthy discussion of the severance question unnecessary. Moreover, it is clear that a motion for severance of defendants is committed to the sound discretion of the trial court. United States v. Goldfarb, 643 F.2d 422 (6th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 117, 70 L.Ed.2d 101 (1981). A general rule in conspiracy cases is that persons jointly indicted should be tried together. United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). This is particularly true where the offenses charged may be established against all of the defendants by the same evidence. Id. See United States v. Echeles, 352 F.2d 892 (7th Cir.1965). The appellants, therefore, have the burden of showing that they were prejudiced by the court’s denial of the severance motion. United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.), cert. denied, — U.S. —, 103 S.Ct. 218, 74 L.Ed.2d 174 (1982); United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). In the instant case, appellants claim that they were denied their sixth amendment right to confrontation because they were not able to call their co-conspirators to testify. However, the record clearly shows that two of the co-conspirators declined to" }, { "docid": "23263087", "title": "", "text": "938 (5th Cir.), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123 (1978). Without a showing of compelling prejudice, a motion for severance should not be granted. Id. From our review, we must conclude that defendants failed to establish any prejudice resulting from their joinder in Count 1. The district court did not abuse its discretion in denying the motion for severance. C. 1. We reach the same conclusion with respect to Count 13 of the indictment. First, the district court properly determined that joinder was proper under Rule 8(b). In United, States v. Dye, 508 F.2d 1226 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975), we stated that “the general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and which result from the same series of acts.” Id. at 1236; United States v. Hessling, 845 F.2d 617, 619 (6th Cir.1988). In the instant case, the indictment charged Morris along with Moreno in the conspiracy count, Count 1. In substance, the conspiracy count alleged that Moreno obtained cocaine and supplied it to Jones for redistribution and that Jones in turn supplied Craighead and Morris. Moreover, the indictment charged that, as part of the conspiracy, Morris stored and maintained at his residence in Cooke County, Tennessee, items used in the sale and distribution of cocaine including quantities of cocaine, scales, and firearms. Count 13 of the indictment charges that Morris, a convicted felon, possessed these firearms in violation of 18 U.S.C. § 922(g). Our decision in Swift directs us that Rule 8(b) “can and should be ‘broadly construed in favor of initial joinder,’ because of the protection Rule 14 affords against unnecessarily prejudicial joinder.” Swift, 809 F.2d at 322. In the instant case, the conspiracy charge and the felony in possession of firearms charge involved overlapping proof. Joinder served the dual goals of trial economy and convenience by insuring that the transaction needed to be proved" }, { "docid": "22279641", "title": "", "text": "does not support this contention. We, therefore, reject their argument that the denial of severance constituted reversible error. In United States v. Dye, 508 F.2d 1226 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975), we stated that “the general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and which result from the same series of acts.” Id. at 1236. Federal Rule of Criminal Procedure 14 provides, in pertinent part: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Fed.R.Crim.P. 14. The decision to grant or deny a motion for severance pursuant to Fed.R.Crim.P. 14 rests within the district court’s sound discretion. We will not disturb the district court’s denial of a Rule 14 motion for severance absent an abuse of discretion. United States v. Zalman, 870 F.2d 1047, 1053 (6th Cir.), cert. denied, 492 U.S. 921, 109 S.Ct. 3248, 106 L.Ed.2d 594 (1989). To establish an abuse of discretion, the movant must make a “strong showing of prejudice.” United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986). The movant satisfies this burden if he or she shows that the jury was unable “to separate and to treat distinctively evidence that is relevant to each particular defendant on trial.” Id. “There is a strong policy in favor of joint trials when charges will be proved by the same series of acts_” United States v. Horton, 847 F.2d 313, 317 (6th Cir.1988) (citation omitted). Even if the movant establishes some potential jury confusion, this confusion must be balanced against the need for speedy and efficient trials. United States v. Swift, 809" }, { "docid": "23004332", "title": "", "text": "testimony from Adonnis at trial. Basile, Enea and Adonnis also contend that United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), cert. denied, 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581 (1971), mandated their severance because of the fatal variance between the indictment, which charged a single conspiracy, and the proof presented at trial, which suggested that there were two separate conspiracies. We address the defendants’ arguments in turn. A. It is well settled that motions for severance are committed to the sound discretion of the trial court, and that the court’s ruling thereon will not be overturned on appeal absent a clear abuse of discretion. Opper v. United States, 348 U.S. 84, 94-95, 75 S.Ct. 158, 99 L.Ed. 101 (1954). To be entitled to a severance a defendant must show that he will be unable to obtain a fair trial without severance, not merely that a separate trial would offer him a better chance of acquittal. United States v. Abraham, 541 F.2d 1234, 1240 (7th Cir. 1976). Moreover, in considering a motion for severance, the trial judge should give due deference to the strong public interest in having persons jointly indicted tried together, particularly where, as here, a conspiracy is charged and may be proved by evidence that arises out of the same act or series of acts. United States v. Echeles, 352 F.2d 892, 896-97 (7th Cir. 1965). Other less drastic alternatives to severance of defendants should be explored first. E. g., United States v. Kahaner, 203 F.Supp. 78, 80-83 (S.D.N.Y.1962) (Weinfeld, J.), aff’d, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d 65 (1963). Ultimately the question is whether, under the circumstances of the particular case, a properly instructed jury can follow the court’s limiting instructions and assess each defendant’s guilt or innocence solely on the basis of the evidence admissible against him. Viewed in light of the above principles, we believe the defendants’ generic arguments of prejudice based on the possibility that the jury could have become confused and reached their verdicts on the basis of guilt by" }, { "docid": "8134078", "title": "", "text": "with another. The question of whether to grant a motion for severance is committed to the trial court’s discretion, and rulings under Rule 14 are reviewable only on abuse of discretion. United States v. Goldfarb, 643 F.2d 422, 434 (6th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 118, 70 L.Ed.2d 101 (1981); United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980); United States v. Mardian, 546 F.2d 973, 977 (D.C.Cir.1976) (en banc); United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). The general rule in conspiracy cases is that persons indicted together should be tried together. United States v. Robinson, 707 F.2d 872, 879 (6th Cir.1983); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); United States v. Echeles, 352 F.2d 892, 896 (7th Cir.1965). This is particularly the case when, as here, offenses charged may be established against all the defendants with the same evidence. United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.), cert. denied, — U.S. —, 103 S.Ct. 753, 74 L.Ed.2d 971 (1982); Dye, 508 F.2d at 1236; United States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir.1979). The potential prejudice to the defendant must be balanced against competing societal goals of efficient and speedy trials. United States v. Davis, 707 F.2d 880 (6th Cir.1983); United States v. Kopituk, 690 F.2d 1289, 1317-18 (11th Cir. 1982); Dye, 508 F.2d at 1236; United States v. Rogers, 475 F.2d 821, 828 (7th Cir.1973). However, a single joint trial is impermissible if it violates a defendant’s right to a fundamentally fair trial. Echeles, 352 F.2d at 896; Barton v. United States, 263 F.2d 894, 898 (5th Cir.1959). Courts have put a heavy burden on defendants seeking severance, requiring a strong showing of prejudice. Opper v. United States, 348 U.S. 84, 94, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954); Hamilton, 689 F.2d at 1275; Bright, 630 F.2d at 813; United States v. Marable, 574 F.2d 224, 231 (5th Cir.1978)." }, { "docid": "22294694", "title": "", "text": "the counts contained in the original indictment, with a major predicate offense eliminated in the superseding indictment. Graewe, furthermore, fails to demonstrate any “actual prejudice to his defense” caused by the trial judge’s refusal to grant a continuance. 3. Angelo Lonardo, Fritz Graewe, and Kevin McTaggart For the reasons already given, we find the trial judge to have acted well within his broad discretion in denying the motions of other appellants for a continuance. C. SEVERANCE Denial of a Rule 14 severance will not be disturbed on review unless the district court abused its discretion in deny ing the motion. See, e.g., United States v. Williams, 711 F.2d 748, 750 (6th Cir.), cert. denied, — U.S. -, 104 S.Ct. 433, 78 L.Ed.2d 365 (1983); United States v. Warner, 690 F.2d 545, 552 (6th Cir.1982); United States v. Tarnowski, 583 F.2d 903 (6th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979); United States v. McLaurin, 557 F.2d 1064 (5th Cir.1977). To show abuse of discretion in this respect, a defendant must make a strong showing of prejudice. Williams, 711 F.2d at 751; United States v. Davis, 707 F.2d 880, 883 (6th Cir.1983); Warner, 690 F.2d at 552. Specifically, he must show an inability by the jury to separate and to treat distinctively evidence that is relevant to each particular defendant on trial. See Williams, 711 F.2d at 751; Davis, 707 F.2d at 883; McLaurin, 557 F.2d at 1075. Even if defendant may establish some potential jury confusion, this must be balanced against society’s need for speedy and efficient trials. United States v. Scaife, 749 F.2d 338 (6th Cir.1984); Davis, 707 F.2d at 883. Persons jointly indicted normally should be tried together. United States v. Stull, 743 F.2d 439 (6th Cir.1984); United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.), cert. denied, — U.S.-, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); see also United States v. Robinson, 707 F.2d 872, 879 (6th Cir. 1983)." }, { "docid": "4069055", "title": "", "text": "117, 70 L.Ed.2d 101 (1981). A general rule in conspiracy cases is that persons jointly indicted should be tried together. United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). This is particularly true where the offenses charged may be established against all of the defendants by the same evidence. Id. See United States v. Echeles, 352 F.2d 892 (7th Cir.1965). The appellants, therefore, have the burden of showing that they were prejudiced by the court’s denial of the severance motion. United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.), cert. denied, — U.S. —, 103 S.Ct. 218, 74 L.Ed.2d 174 (1982); United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972). In the instant case, appellants claim that they were denied their sixth amendment right to confrontation because they were not able to call their co-conspirators to testify. However, the record clearly shows that two of the co-conspirators declined to testify on the ground of the fifth amendment. Before this Court finds an abuse of discretion, it must at least be demonstrated that one of the co-conspirators was willing to testify. In the absence of any showing of prejudice, this Court finds no abuse of discretion in the trial court’s denial of severance. CONCLUSION After reviewing the record, listening to the tapes and comparing them to the transcripts, we are persuaded that the court erred in permitting the use of government prepared transcripts which concededly “interpreted” inaudible portions of tape recordings. Accordingly, the convictions are reversed and the case remanded for further proceedings consistent with this opinion. . The pertinent provisions of 18 U.S.C. § 1962 are as follows: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or in the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall" }, { "docid": "8134079", "title": "", "text": "United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.), cert. denied, — U.S. —, 103 S.Ct. 753, 74 L.Ed.2d 971 (1982); Dye, 508 F.2d at 1236; United States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir.1979). The potential prejudice to the defendant must be balanced against competing societal goals of efficient and speedy trials. United States v. Davis, 707 F.2d 880 (6th Cir.1983); United States v. Kopituk, 690 F.2d 1289, 1317-18 (11th Cir. 1982); Dye, 508 F.2d at 1236; United States v. Rogers, 475 F.2d 821, 828 (7th Cir.1973). However, a single joint trial is impermissible if it violates a defendant’s right to a fundamentally fair trial. Echeles, 352 F.2d at 896; Barton v. United States, 263 F.2d 894, 898 (5th Cir.1959). Courts have put a heavy burden on defendants seeking severance, requiring a strong showing of prejudice. Opper v. United States, 348 U.S. 84, 94, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954); Hamilton, 689 F.2d at 1275; Bright, 630 F.2d at 813; United States v. Marable, 574 F.2d 224, 231 (5th Cir.1978). An especially compelling showing is required in RICO prosecutions. As the court noted in United States v. Provenzano, 688 F.2d 194, 199 (3d Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 492, 74 L.Ed.2d 634 (1982), “in a case of this nature it is preferable to have all of the parties tried together so that the full extent of the conspiracy may be developed.” Upon a careful review of the record we cannot say that defendants have shown the compelling prejudice required for a granting of severance. At the heart of defendants’ severance claim is the fact that some of them were not named in all three of the predicate racketeering acts for which evidence was introduced. We recently held in Davis that this circumstance alone does not necessitate severance. 707 F.2d at 883. The jury was carefully instructed that the evidence of bribery was admissible only against Liberatore and Ciarcia, and there is nothing in the record to indicate that the jurors were confused or misled. Testimony regarding the other defendants in connection with" }, { "docid": "2368399", "title": "", "text": "not implicated by this statement and that the joint trial did not violate their constitutional right to confront witnesses against them. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). A motion under Rule 14, Fed.R.Crim. P., for relief from prejudicial joinder is directed to the sound discretion of the trial court and denial of severance is not grounds for reversal in the absence of an abuse of discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Vaughan, 422 F.2d 812 (6th Cir. 1970) ; United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310, 21 L.Ed.2d 279 (1968). It was pointed out in United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), that the general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and which result from the same series of acts. The defendants other than Dye do not contend that joinder was improper under Rule 8, Fed.R.Crim.P., but only that it was prejudicial and that severance should have been ordered under Rule 14. The Court of Appeals for the Seventh Circuit considered such a claim in United States v. Rogers, 475 F.2d 821 (1973), where it stated at page 828: Joinder being proper, this court will reverse the trial court only if abuse of discretion is shown. The trial court is to balance possible prejudice to the defendant from joinder with the public interest in efficient use of judicial time through joint trial of defendants and offenses which are connected. In a case of multiple defendants, as the instant one, the showing needed for severance appears to be stronger than in a case of a single defendant with multiple counts. See Wright and Miller, Federal Practice and Procedure § 223 (1969). (Citations omitted.) We find no abuse of discretion in the denial of severance to the defendants named" }, { "docid": "23263086", "title": "", "text": "substance. Joint Appendix at 35. Count 1 charged defendants with involvement in a chain conspiracy. “[I]n a chain conspiracy prosecution, the requisite element — knowledge of the existence of remote links — may be inferred solely from the nature of the enterprise.” United States v. Elliott, 571 F.2d 880, 901 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). Although Morris was acquitted of participating in the conspiracy, the district court properly joined defendants in Count 1 of the superseding indictment based on the government’s belief that it could prove that Moreno supplied cocaine to Jones who then provided cocaine to Morris for distribution as part of the chain conspiracy. 2. We also find unpersuasive Moreno’s claim that severance of the parties in Count 1 was required. The decision to grant or deny a motion for severance is entrusted to the sound discretion of the district court. Swift, 809 F.2d at 322. As a general rule, persons jointly indicted should be tried together. United States v. Kelly, 569 F.2d 928, 938 (5th Cir.), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123 (1978). Without a showing of compelling prejudice, a motion for severance should not be granted. Id. From our review, we must conclude that defendants failed to establish any prejudice resulting from their joinder in Count 1. The district court did not abuse its discretion in denying the motion for severance. C. 1. We reach the same conclusion with respect to Count 13 of the indictment. First, the district court properly determined that joinder was proper under Rule 8(b). In United, States v. Dye, 508 F.2d 1226 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975), we stated that “the general rule in conspiracy cases is that persons jointly indicted should be tried together and that this is particularly true where the offenses charged may be established against all of the defendants by the same evidence and which result from the same series of acts.” Id. at 1236; United States v. Hessling, 845 F.2d 617, 619 (6th" }, { "docid": "22294695", "title": "", "text": "make a strong showing of prejudice. Williams, 711 F.2d at 751; United States v. Davis, 707 F.2d 880, 883 (6th Cir.1983); Warner, 690 F.2d at 552. Specifically, he must show an inability by the jury to separate and to treat distinctively evidence that is relevant to each particular defendant on trial. See Williams, 711 F.2d at 751; Davis, 707 F.2d at 883; McLaurin, 557 F.2d at 1075. Even if defendant may establish some potential jury confusion, this must be balanced against society’s need for speedy and efficient trials. United States v. Scaife, 749 F.2d 338 (6th Cir.1984); Davis, 707 F.2d at 883. Persons jointly indicted normally should be tried together. United States v. Stull, 743 F.2d 439 (6th Cir.1984); United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.), cert. denied, — U.S.-, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); see also United States v. Robinson, 707 F.2d 872, 879 (6th Cir. 1983). 1. Angelo Lonardo Lonardo claims the district court erred by failing to grant his motion for severance. See Fed.R.Crim.Proc. 14. This claim raises an issue concerning the effect the court’s actions had on the ability of the jury to decide fairly and separately the guilt or innocence of each defendant. Lonardo claims that the “mass of highly inflammatory testimony concerning the gruesome and brutal murders [charged against the other defendants] would not have been admitted if Appellant were tried alone” (Lonardo’s brief at 25). He argues that he has a right not to be tried for violent offenses for which he is not charged, not to be tried jointly with appellants charged in a similar but allegedly unrelated conspiracy, and not to be tried in a joint trial where substantial prejudice results from a “spillover effect” of evidence relating to other appellants. Lonardo fails to support his argument for severance with any showing of likely jury confusion or other indicia of prejudice. Rather, he bases his argument on the inflammatory nature of some of the" }, { "docid": "8134077", "title": "", "text": "in which the agent referred to Licavoli’s activities as “criminal”; 2) references to prosecution witnesses as being in the Witness Protection Program as suggesting that defendants had threatened the witnesses; 3) references to plea bargaining agreements as suggesting that the government vouched for the truthfulness of the witness’ testimony; 4) the admission of co-conspirator statements under Fed.Rule Evid. 804(d)(2)(E) as violating the confrontation clause of the sixth amendment. We find all of these challenges to be without merit. IX. The District Court Did Not Err in Denying Defendants’ Motion for Severance Defendants Licavoli, Calandra and Cister-nino argue that the District Court erred in failing to grant their motions for severance at trial under Rule 14, Fed.R.Crim.Pro. They argue that they were prejudiced by evidence offered against other defendants at trial, and that the court’s instructions to the jury could not have obviated that prejudice. Defendants complain primarily of evidence of bribery introduced against Libera-tore and Ciarcia. Rule 14 provides that severance may be granted if substantial prejudice would result to an individual defendant tried jointly with another. The question of whether to grant a motion for severance is committed to the trial court’s discretion, and rulings under Rule 14 are reviewable only on abuse of discretion. United States v. Goldfarb, 643 F.2d 422, 434 (6th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 118, 70 L.Ed.2d 101 (1981); United States v. Bright, 630 F.2d 804, 813 (5th Cir.1980); United States v. Mardian, 546 F.2d 973, 977 (D.C.Cir.1976) (en banc); United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). The general rule in conspiracy cases is that persons indicted together should be tried together. United States v. Robinson, 707 F.2d 872, 879 (6th Cir.1983); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); United States v. Echeles, 352 F.2d 892, 896 (7th Cir.1965). This is particularly the case when, as here, offenses charged may be established against all the defendants with the same evidence." }, { "docid": "1450146", "title": "", "text": "“spillover” effect of evidence against each codefendant and from the inability to compel exculpatory testimony from their codefendants. Mooradian and Stull Sr. also claim prejudice from Stull Jr.’s pro se representation at trial; Moora-dian claims further prejudice as a result of her inability to introduce exculpatory sections of her grand jury testimony due to Bruton considerations. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There is no question that the defendants were properly indicted together for twenty counts of mail fraud under Fed. R.Crim.P. 8. As a general rule, persons jointly indicted should be tried together. United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.), cert. denied, — U.S.-, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). The district court may grant a severance if it appears that a defendant is prejudiced by the joinder. Fed.R.Crim.P. 14. The refusal to do so, however, will be overruled on appeal only if a clear abuse of discretion is demonstrated. Licavoli, supra, 725 F.2d at 1051; United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983). The defendants have the burden of showing compelling prejudice. Id. Having reviewed the trial transcript, we conclude that the defendants have not met their burden. The charges against each of the defendants were proved by substantially the same witnesses and documents. There was proof of how the defendants worked together and of each defendant’s role in both facets of the scheme. The jury was also properly instructed to give separate, personal consideration to the case of each individual defendant. See United States v. Reed, 647 F.2d 678, 689 (6th Cir.), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981); United States v. Lutz, 621 F.2d 940, 945 (9th Cir.1980), cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75 (1981). Nor do we find substantial prejudice from the defendants’ inability to call each" }, { "docid": "320231", "title": "", "text": "refused absolutely to discuss the matter or requested an attorney. The record indicates that both understood their rights and were trying to decide what course to follow during the relatively brief time between their arrests and confessions. Shortly before Gay’s confession was received the agents had “a reasonable basis for inferring that the suspect ha[d] voluntarily changed his mind.” United States v. Collins, 462 F.2d 792, 802 (2d Cir.) (en banc), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972). The entire record supports the conclusion that the prosecution sustained its “heavy burden” of showing that the confessions were voluntarily made and that the right of appellant and his co-defendant to remain silent was not violated. Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. 1602; United States v. Rimka, 512 F.2d 425 (6th Cir. 1975); Hill v. Whealon, supra, at 635. Appellant pled insanity as his defense and in his opening statement counsel for Gay admitted many' of the facts surrounding the fatal robbery. He alleges prejudice from the denial by the district court of his motion for a separate trial from that of his accomplice. He claims particularly that the introduction of Gerlofs’ confession harmed his case. The court instructed the jury that it could consider each confession only in connection with the charges against the person who gave it. Gay’s name was deleted from Gerlofs’ confession and “my friend” was substituted. The jury was not permitted to see the written confessions or to take them to the jury room. The appellant has not specified the prejudice which he claims resulted from the joint trial. The Bruton rule (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)) was not violated in this case, and the district court did not abuse the discretion granted it by Rule 14, Fed.R.Crim.P., in denying Gay’s motion for a severance. United States v. Dye, 508 F.2d 1226, 1236 (6th Cir. 1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); United States v. Franks, 511 F.2d 25 (6th Cir. 1975), cert." }, { "docid": "1450145", "title": "", "text": "note that this court has previously approved the definition of this element as set forth by the district court. United States v. VanDyke, 605 F.2d 220, 225 (6th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979). The defendants have given us no persuasive reason for overruling our earlier decision. Finally, the district court’s definition of false statements likewise conformed to the prevailing legal standard. See United States v. Frick, 588 F.2d 531, 536 (5th Cir.), cert. denied, 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 385 (1979); Amrep Corp., supra, 560 F.2d at 543; Irwin v. United States, 338 F.2d 770, 774 (9th Cir.1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1530, 14 L.Ed.2d 433 (1965). V. Severance Several times during the trial each defendant moved for relief from prejudicial joinder of counts and of defendants pursuant to Fed.R.Crim.P. 14. They now argue that the district court’s denial of their motions for severance of the defendants created substantial prejudice and constituted an abuse of discretion. They claim prejudice from the “spillover” effect of evidence against each codefendant and from the inability to compel exculpatory testimony from their codefendants. Mooradian and Stull Sr. also claim prejudice from Stull Jr.’s pro se representation at trial; Moora-dian claims further prejudice as a result of her inability to introduce exculpatory sections of her grand jury testimony due to Bruton considerations. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There is no question that the defendants were properly indicted together for twenty counts of mail fraud under Fed. R.Crim.P. 8. As a general rule, persons jointly indicted should be tried together. United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.), cert. denied, — U.S.-, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Dye, 508 F.2d 1226, 1236 (6th Cir.1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975). The district court may grant a severance if it appears that a defendant is prejudiced by the joinder. Fed.R.Crim.P. 14. The refusal to do so, however, will be overruled on" }, { "docid": "22298671", "title": "", "text": "Federal Rule of Criminal Procedure 8(b), a “strong showing of prejudice” is required to justify severance. United States v. Hessling, 845 F.2d 617, 619 (6th Cir.1988). Denial of a Rule 14 severance will not be disturbed on review unless the district court abused its discretion in denying the motion. United States v. Warner, 690 F.2d 545, 552 (6th Cir.1982). To show a district court abused its discretion, the defendants must make a strong showing of prejudice. Id. Specifi cally, the defendants must show an inability by the jury to separate and to treat distinctively evidence that is relevant to each particular defendant on trial. United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir.1985). Even if a defendant may establish some potential jury confusion, this must be balanced against society’s need for speedy and efficient trials. Id. As a general rule, persons jointly indicted should be tried together. United States v. Stull, 743 F.2d 439, 446 (6th Cir.1984). This is particularly true when, as here, the offenses charged may be established against both defendants with the same evidence, See United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.1984), and result from the same series of acts. United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.1982). However, a single joint trial is impermissible if it violates a defendant’s right to a fundamentally fair trial. Licavoli, 725 F.2d at 1051. The defendants have the burden of showing compelling prejudice. Stull, 743 F.2d at 446. A defendant may move for a mistrial where there is a legitimate claim of seriously prejudicial error. United States v. Dinitz, 424 U.S. 600, 609-10, 96 S.Ct. 1075, 1080-81, 47 L.Ed.2d 267 (1976); see also United States v. Atisha, 804 F.2d 920, 926 (6th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). The denial of a mistrial is generally within the discretion of the trial court. Atisha, 804 F.2d at 926. Further, the standard of review of the trial court’s ruling is whether the trial court has abused its discretion. Id. We believe that a determination of the fairness to the" }, { "docid": "7971579", "title": "", "text": "of entrapment. Weighing all of these factors, we conclude that the district court did not abuse its discretion in admitting the subsequent act evidence to prove Moschiano’s predisposition. III. Defendant Bishop argues that his conviction for conspiracy to distribute heroin must be reversed because the district court’s refusal to grant his several motions for severance deprived him of a fair trial. He argues that a joint trial with defendant Moschiano was unfair because the two defendants pursued inconsistent defenses and because the testimony offered to rebut Moschiano’s entrapment defense had a prejudicial spillover effect on Bishop’s case. A motion for severance is committed to the sound discretion of the district court, whose decision will be set aside only if the discretion was clearly abused. Opper v. U.S., 348 U.S. 84, 94-95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954); United States v. Berardi, 675 F.2d 894, 900 (7th Cir.1982). The denial of a motion for severance will only rarely be reversed on appeal and then only for the most cogent reasons. United States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979). To be entitled to a severance, a defendant must establish such prejudice that a joint trial would be unfair, a difficult burden that is not satisfied merely by showing that a separate trial would offer the accused a better chance of acquittal. United States v. McPartlin, supra, 595 F.2d at 1333-34. In exercising its discretion, the trial court must give due deference to the strong public interest in favor of a joint trial, particularly where, as here, the indictment charges a conspiracy which may be proved against both defendants by the same evidence and which results from the same act or similar series of acts. United States v. Papia, 560 F.2d 827, 836-37 (7th Cir.1977); United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965). Measured against this standard, the denial of Bishop’s motions for severance was not in our view an abuse of discretion. Bishop first contends that severance was necessary because of inconsistent defenses." } ]

[ { "docid": "22271190", "title": "", "text": "Polk County, 518 F.2d 1160, 1165-66 (8th Cir. 1975). Defendants’ original Motion to Dismiss mentioned res judicata with respect to Crowder’s due process claim only; it did not address the eighth amendment issue, and is thus irrelevant to the present inquiry. Defendants’ Supplemental Motion to Dismiss and Answer raised the defense of res judicata but only with respect to the limited issue of defendants’ good faith. Defendants argued, erroneously, that plaintiff was precluded from an award of damages because the issue of defendants’ good faith had been decided adversely to him in Aliens. But the district court in Aikens did not address the issue of defendants’ good faith, since that issue was immaterial to the declaratory and injunctive relief requested by the plaintiff class. Therefore, because defendants here did not raise a broad or general res judicata defense in the district court, that issue is not before us on appeal. See Ohio Casualty Insurance Co. v. Rynearson, 507 F.2d 573, 582 (7th Cir. 1974) (“The principle that new issues or new bases of liability may not be raised for the first time on appeal, is too well known to require citation.”). Even if res judicata were properly before us, however, we would reject defendant’s broad argument on its merits. At least one circuit has held that before a class member may be barred from pursuing an individual claim for damages, he must have been notified that he was required to adjudicate his damage claims as part of a prior class action suit. Penson v. Terminal Transport Co., 634 F.2d 989, 995 (5th Cir. 1981); Johnson v. General Motors Corp., 598 F.2d 432, 437 (5th Cir. 1979); Bogard v. Cook, 586 F.2d 399, 408 (5th Cir. 1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979). Aikens v. Lash, however, was filed as a suit for declaratory and injunctive relief only. We agree with the fifth circuit that it would be “a harsh and improper application of res judicata to hold, on the basis of the notice sent out in [a previous class action suit] that prisoners forfeited" } ]

[ { "docid": "23484715", "title": "", "text": "(who, upon information and belief, viewed beatings etc. at Marion in • November, 1983), Wardens Miller, Williford, Associate Wardens D.W. Keohane ... are responsible for establishing policies and procedures authorizing the violations stated in this complaint, for ordering them, for supervision them, for not investigating complaints about them, and ultimately for not preventing them.... See Brief and Appendix of Plaintiff-Appellant at 23. The district court dismissed the claims against Warden Miller, Director Carlson, Warden Williford, and Associate Wardens Keohane and Lamer. In so doing, the district court indicated that the above-mentioned defendant-appellees could not be held liable in a Bivens action under the doctrine of respondeat superior or supervisory liability. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 2722, 105 L.Ed.2d 598 (1989). The decisional law is clear that there must be individual participation and involvement by a defendant, and that the concept of respondeat superior cannot be the basis of a claim under § 1983. See Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rascon v. Hardiman, 803 F.2d 269 (7th Cir.1986); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Duncan v. Duckworth, 644 F.2d 653 (7th Cir.1981); and Adams v. Pate, 445 F.2d 105 (7th Cir.1971). See also Sulie v. Duckworth, 583 F.Supp. 995 (N.D.Ind.1984), aff'd, 767 F.2d 924 (7th Cir.1985). In general, Section 1983 cases and Bivens cases are parallel in this regard. The appellant asserts two more claims here. First, the appellant maintains that supervisory staff can be found liable for directing an unconstitutional policy. Second, the appellant claims the supervisory defendant-appellees also facilitated and ignored the constitutional violations of their subordinates. For purpose of the first claim, the appellant maintains that the claim of supervisory liability must be seen both in light of what occurred at Marion in late 1983 and the specific allegations made by the appellant in his Complaint. In 1983, the Bureau of Prisons made a decision to lock down the prison. That decision was made" }, { "docid": "19195397", "title": "", "text": "not demand that every government official become skilled in guessing the future path of the law. The Court in Benson concluded that “whenever a balancing of interests is required, the facts of the existing caselaw must closely correspond to the contested action before the defendant official is subject to liability ... qualified immunity typically casts a wide net to protect government officials from damage liability whenever balancing is required.” 786 F.2d at 276. In denying defendants’ motion to dismiss, this court reserved ruling on the constitutionality of the exercise and showers permitted plaintiffs. This court noted that “[a]s stated by the Seventh Circuit in Well-man v. Faulkner, 715 F.2d 269, 274 (7th Cir.1983), cert, denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984), ‘[vjarious prison conditions do not exist in isolation. Rather, challenged conditions must be viewed in the light of other prison conditions that may aggravate or mitigate the effect of the challenged conditions.’ ” Memorandum Opinion and Order, September 13, 1984. Constitutional entitlement by segregation unit inmates to more than one shower and one exercise period per week at State-ville was not clearly established law. Illinois law provides that “[ajll institutions and facilities of the Department shall provide every committed person with access to ... bathing facilities at least once each week____” Ill.Rev.Stat. ch. 38, 111003-7-2(a), eff. August 31, 1979. State statutes are presumed to be constitutional. North Shore Post No. 21 of the American Legion v. Korzen, 38 I11.2d 231, 230 N.E.2d 833 (1967). In Pinkston v. Bensinger, 359 F.Supp. 95 (N.D.I11.1973), the court held that one hour of exercise and one shower per week did not constitute cruel and unusual punishment at Joliet. In Preston v. Thompson, 589 F.2d 300 (7th Cir.1978), the Seventh Circuit held that the district court did not abuse its discretion when it issued a preliminary injunction which required prison officials at Pontiac to provide, inter alia, two showers a week and daily recreation to all inmates. The court stated that this might go beyond the constitutional minimum. The dissent stated a plan submitted by prison officials to provide one" }, { "docid": "14889472", "title": "", "text": "D. Owen, Prosser and Keeton on Torts § 41, at 270-71 (5th ed. 1984) (hereinafter “Prosser and Keeton on Torts”). See Burton v. Waller, 502 F.2d 1261, 1282-84 (5th Cir.1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). There was no “clearly established double fault” in this ease. We also reject Unwin’s argument based on Ybarra. In Ybarra, an unconscious patient undergoing an operation suffered a traumatic injury, and res ipsa loquitur was applied against all of the doctors and hospital employees connected with the operation, although it seemed quite clear that not all of them could have been responsible. “The basis of the decision appears quite definitely to have been the special responsibility for the plaintiff’s safety undertaken by everyone concerned.” Prosser and Keeton on Torts § 39, at 252-53. We decline to follow Ybarra’s approach in this case for the same reasons the Seventh Circuit gave in Wellman v. Faulkner, 715 F.2d 269, 276 (7th Cir.1983) (civil rights action challenging prison conditions), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984): Unlike Ybarra, the defendants here are not the individuals who were immediately responsible for plaintiffs’ care. Also, unlike Ybarra in which the standard of liability was mere negligence, in the instant case negligence would not be enough, Estelle, 429 U.S. at 106 [97 S.Ct. at 292].... Finally, although prisoners are to some extent handicapped in identifying who precisely is responsible for their mistreatment, we cannot say that they are so limited in their access to information that the burden of explanation should be shifted to defendants. We thus refuse to apply the doctrine of res ipsa loquitur to this case and to shift the burden of proof regarding causation to the defendants. We accordingly find that defendants Fur-lone and Campbell are entitled to qualified immunity and should have been granted summary judgment on this basis. 2. Defendants llsworth, Curren, Terhune and Sambatero While Unwin has not been able to personally identify the law enforcement officers who had contact with him on the night in question, the remaining four defendants, Trooper" }, { "docid": "18575206", "title": "", "text": "v. Ward, 565 F.2d 48, 52 (2nd Cir.1977). For as the case law makes clear, an individual plaintiff can not recover by showing that a defendant provided negligent medical care or committed malpractice in a specific instance. Estelle, 429 U.S. at 106, 97 S.Ct. at 292; Toussaint IV, 801 F.2d at 1111; Franklin v. State Welfare Div., 662 F.2d 1337 (9th Cir.1981). However a plaintiff class can rely on such instances and systemic deficiencies to show that prison administrators are deliberately indifferent to a pattern of inadequate medical care and obtain injunctive relief on a classwide basis. De-Gidio, 920 F.2d at 532-33; Todaro, 565 F.2d at 52 (\"And while a single instance of medical care denied or delayed, viewed in isolation, may appear to be the product of mere negligence, repeated examples of such treatment bespeak a deliberate indifference by prison authorities to the agony engendered by haphazard and ill-conceived procedures”); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). . Indicia of ''serious” medical need include \"[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain....” McGuckin v. Smith 974 F.2d 1050, 1059-1060 (9th Cir.1992). As the evidence shows, plaintiffs, as a class, clearly have serious medical needs. They also have serious mental health needs, in that members of the class suffer from mental disorders and illnesses that go beyond the mere stress or anxiety that is part of the “routine discomfort” of incarceration. See Doty, 37 F.3d at 546 (ailments such as nausea and depressed appetite caused by unresolved family situational stress not serious medical need); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (\"Treatment of the mental disorders of mentally disturbed inmates is a 'serious medical need.’ ”) . See also Hudson, 503 U.S. at 16, 112 S.Ct. at 1004 (Blackmun," }, { "docid": "18782454", "title": "", "text": "and intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Here, the district court found that even though defendants’ good faith belief that plaintiff had threatened an officer was not a basis for segregating Chapman, it did provide grounds for denying punitive damages. The award of punitive damages is also within the sound discretion of the district judge and his finding will not be disturbed. IV. The final issue raised on appeal is whether defendants may be held personally liable for plaintiffs damage. A plaintiff may establish personal responsibility “if the official acts or fails to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge or consent.” Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982); Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir.1983). This test was clearly satisfied as to the three members of the Adjustment Committee and Associate Warden Frey. The members of the Adjustment Committee made the initial determination that plaintiff should be confined to segregation. They met repeatedly during his time in segregation to review his case. While in a position to return plaintiff to the general prison population, they kept him in segregation for nine months. Associate Warden Frey participated in many of the meetings concerning Chapman’s confinement. In his position as supervisor, he too had the power to correct plaintiffs wrongful confinement. Under similar circumstances in Crowder we found the personal responsibility requirement had been met: The evidence presented by Crowder indicated that both Moore and Devero sat as members of the disciplinary committee and, thus, participated directly in the “disciplinary hearings” by which Crow-der was repeatedly sentenced to confinement in the D.O. seclusion unit. In addition, Crowder testified that Moore and Devero were directly responsible for denying his requests for legal assistance and legal materials_ Moreover, because Moore and Devero were personally accountable for reviewing the status of inmates held in D.O." }, { "docid": "4620203", "title": "", "text": "this litigation. According to McDonald, if this Court finds reinstatement to be an appropriate remedy, Danikolas, as Chief Judge, is the only official capable of effecting reinstatement under Indiana law. It is well settled that to establish a § 1983 claim for damages, a plaintiff must demonstrate a defendant’s personal responsibility for deprivation of his constitutional rights. Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir.1985); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981). If the alleged deprivation involves an official, the personal responsibility requirement is satisfied if the official “acts or fails to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the constitutional depriva tion occurs at her direction or under her knowledge and consent.” Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982). Absent any personal involvement in the deprivation or any “deliberate or reckless disregard” for the plaintiffs constitutional rights, a complaint under § 1983 fails to establish a cause of action for damages against the official. In addition, the very language of § 1983 predicates liability upon the defendant’s personal involvement in the alleged deprivation. Section 1983 states in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the district of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... (emphasis added). It is apparent from the language of the statute that a causal connection must exist between the defendant’s actions and the plaintiff’s alleged deprivation of constitutional rights before the defendant is liable under § 1983. Under the statute, a deprivation becomes actionable only when the defendant “subjects” or “causes to be subjected” another individual to deprivation of any of his rights, privileges and immunities. Once again, there is no actionable § 1983 claim for damages" }, { "docid": "10040858", "title": "", "text": "(3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). The District Court dismissed the malicious prosecution claim against McClure because Curry could not meet the fifth element. We agree with that ruling. Curry was already incarcerated on Yachera’s charges when McClure brought his charges against Curry. When McClure’s charges were dropped, Curry was still in jail. As a result, McClure never deprived Curry of his liberty “as a consequence of’ the charges McClure brought against Curry. Curry’s liberty had already been deprived. See United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013) (“Johnson is already incarcerated. His liberty is already deprived.... No new deprivation of liberty can be visited upon him....” (citation omitted)); Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir. 1998) (“[A] plaintiff asserting a malicious prosecution claim must show some deprivation of liberty consistent with the concept of seizure.” (quotation marks omitted)); Gravely v. Madden, 142 F.3d 345, 348 (6th Cir. 1998) (“The Fourth Amendment is not triggered anew [when a person] has already been ‘seized’.... ”); United States v. Sutton, 607 F.2d 220, 222 (8th Cir. 1979) (“[A]ppellant was already confined; he had been legally deprived of his liberty and was in the custody of the State of Missouri. Therefore, no interruption of his ‘liberty’ occurred.”); Turner v. Schultz, 130 F.Supp.2d 1216, 1225 (D. Colo. 2001) (noting the lack of any support for the proposition “that an already lawfully incarcerated prisoner is seized for Fourth Amendment purposes when he is charged with an additional crime.”). McClure simply never deprived Curry of his liberty as a consequence of his (McClure’s) charges. Therefore, the District Court properly dismissed the Fourth Amendment malicious prosecution claim against McClure. VI. For the foregoing reasons, we will affirm the District Court’s order of dismissal in all respects except that we will" }, { "docid": "2324545", "title": "", "text": "injuries sustained by the plaintiff. Thus, Officer Warren’s argument that she was not aware that the plaintiff was being kicked does not provide a basis for amending the findings or judgment in this action so as to relieve her of liability to Mr. Diebitz. Officer Warren presents one other, alternative argument attacking my conclusion that she is liable to Mr. Diebitz for failing to act to protect him while she was escorting him in the jail elevator. Specifical ly, she contends that there is no evidence in the record that she physically had the time or opportunity to prevent, or to attempt to prevent, the beating of the plaintiff by her colleagues in the jail elevator. See, e.g., Richardson v. City of Indianapolis, 658 F.2d 494, 500 (7th Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982); Russ v. Ratliff, 538 F.2d 799, 805 (8th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). To recover damages under 42 U.S.C. § 1983, a plaintiff must establish a defendant’s personal responsibility for the claimed deprivation of a constitutional right. Duckworth, 644 F.2d at 655. However, the personal responsibility requirement is satisfied if the official “acts or fails to act with a deliberate or reckless disregard of plaintiffs constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent.” Lash, 687 F.2d at 1005 (emphasis added). See also Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). Most importantly, in the context of excessive force police brutality cases brought pursuant to 42 U.S.C. § 1983, “it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge.” Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir.1972). See also Archie v. City of Racine, 847 F.2d 1211, 1222 (7th Cir.1988) (citing Byrd" }, { "docid": "18782453", "title": "", "text": "court must match the most generous offer made elsewhere, even though the circumstances of the case before it may be different and even though it may be the higher awards that less accurately reflect actual damages. In cases of wrongful segregation, at least one other court has awarded sums to victims of wrongful segregation similar to what Chapman received. See Riley v. Johnson, 528 F.Supp. 333, 343 (E.D.Mich.1981) ($25 per day). While some courts have awarded larger amounts, this may have been due to factors not present in Chapman’s case. For example, the plaintiffs in Mary & Crystal v. Ramsden were juveniles. The plaintiff in United States ex rel. Larkins v. Oswald was marched naked to his cell and subjected to a strip search and the probing of his anal cavity. The district judge was aware of these cases when he calculated his award. We cannot say he abused his discretion. III. Chapman also seeks punitive damages. A court may award punitive damages “when the defendant’s conduct is shown to be motivated by evil motive and intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Here, the district court found that even though defendants’ good faith belief that plaintiff had threatened an officer was not a basis for segregating Chapman, it did provide grounds for denying punitive damages. The award of punitive damages is also within the sound discretion of the district judge and his finding will not be disturbed. IV. The final issue raised on appeal is whether defendants may be held personally liable for plaintiffs damage. A plaintiff may establish personal responsibility “if the official acts or fails to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge or consent.” Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982); Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir.1983). This test was clearly satisfied as to the three members" }, { "docid": "18782490", "title": "", "text": "and daily administration are among the tasks parcelled out. The eighth, amendment does not establish superiors’ liability. A warden is liable only for what he does, not for what he fails to prevent his subordinates from doing. The division of labor and the delegation of functions within a prison are not unconstitutional. A warden asleep on the job will have to answer to his superiors, but dozing off on company time is not a violation of the Constitution. The proper defendants are those who put Chapman in segregation and, despite regularly reviewing his status, refused to let him out. We have held that supervisory officials are not liable for failing to intervene to ameliorate things. E.g., Kunzelman v. Thompson, 799 F.2d 1172—75 (7th Cir.1986); Walker v. Rowe, 791 F.2d 507, 508-09 (7th Cir.1986); Ustrak v. Fairman, 781 F.2d 573, 575-77 (7th Cir.1986); Duckworth v. Franzen, 780 F.2d at 650; McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir.1984); Wellman v. Faulkner, 715 F.2d 269, 275-76 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Crowder v. Lash, 687 F.2d 996, 1005-06 (7th Cir.1982); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981); Adams v. Pate, 445 F.2d 105, 107 (7th Cir.1971). Some of these cases are very similar to this. In Adams v. Pate, for example, the court held that notice to a warden that a prisoner was being beaten did not justify damages when the warden did not take steps to prevent future beatings. A prison may apportion responsibilities among officials without exposing supervisors to liability on the ground that they failed to prevent what the subordinates were doing. The majority does not reconcile its holding with the cases I have cited. The “clearly erroneous” doctrine, to which the majority refers, applies to facts and inferences; I do not think, however, that facts and inferences are disputed. The question is whether on stipulated facts the warden of a prison is liable for failing to prevent a violation of the eighth amendment by his subordinates. The stipulation of facts does not suggest, and" }, { "docid": "19195396", "title": "", "text": "that their conduct probably is unlawful. Azeez v. Fairman, 795 F.2d 1296,1301 (7th Cir.1986). The Seventh Circuit has found that “there is one type of constitutional rule, namely that involving the balancing of competing interests, for which the standard may be clearly established, but its application is so fact dependent that the ‘law’ can rarely be considered ‘clearly established.’ ” Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert, denied, — U.S.-, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986). The Court noted with approval Murray v. Gardner, 741 F.2d 434, 440 n. 2 (D.C.Cir.1984), cert, denied, 470 U.S. 1050, 105 S.Ct. 1748, 84 L.Ed.2d 813 (1985): Government officials must be granted the ability to pass unmolested through bogs of murky legal precedent. They must not become prey to every hypothesis of what the law might have come to forbid had it eventually developed along certain lines. When the law is clear, and an official’s duties delineated, then he will not be able to rely on the immunity defense. But we must not and do not demand that every government official become skilled in guessing the future path of the law. The Court in Benson concluded that “whenever a balancing of interests is required, the facts of the existing caselaw must closely correspond to the contested action before the defendant official is subject to liability ... qualified immunity typically casts a wide net to protect government officials from damage liability whenever balancing is required.” 786 F.2d at 276. In denying defendants’ motion to dismiss, this court reserved ruling on the constitutionality of the exercise and showers permitted plaintiffs. This court noted that “[a]s stated by the Seventh Circuit in Well-man v. Faulkner, 715 F.2d 269, 274 (7th Cir.1983), cert, denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984), ‘[vjarious prison conditions do not exist in isolation. Rather, challenged conditions must be viewed in the light of other prison conditions that may aggravate or mitigate the effect of the challenged conditions.’ ” Memorandum Opinion and Order, September 13, 1984. Constitutional entitlement by segregation unit inmates to more than one" }, { "docid": "15135879", "title": "", "text": "dilemma of the nation’s prisons, district courts have imposed a wide variety of remedial measures, including orders requiring the closing of aging and unsanitary institutions, imposing population caps or ordering the cessation of double-celling, and prohibiting certain disciplinary practices. Many orders directing the effectuation of necessary relief have been affirmed by the courts of appeals. See, e.g., Inmates of Allegheny County Jail v. Wecht, 874 F.2d 147 (3d Cir.) (affirming order that jail be closed), vacated on other grounds, — U.S. -, 110 S.Ct. 355, 107 L.Ed.2d 343 (1989), on remand, 893 F.2d 33 (3d Cir.1990) (case rendered moot by stipulation between parties); French v. Owens, 777 F.2d 1250 (7th Cir.1985) (affirming imposition of population cap, prohibition of double-celling, ban on use of mechanical restraints, required appointment of additional medical staff); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (affirming imposition of population cap); Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.) (affirming imposition of population cap), vacated in part on other grounds, 688 F.2d 266 (5th Cir.1982) (per curiam), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Johnson v. Levine, 588 F.2d 1378 (4th Cir.1978) (en banc) (affirming order requiring close of section housing mentally ill patients). But see Inmates of Occoquan, 844 F.2d 828 (reversing imposition of population cap); Cody, 830 F.2d 912 (en banc) (reversing prohibition on double-cell-ing). Defendants suggest that the district court order unduly interferes with the state’s administration of its prison system because the end of double-celling in North and South Blocks “requires an immediate reduction in population there; this, in turn, requires that they be absorbed by a statewide system which is already thirty-seven percent over capacity and which receives two hundred twenty five inmates a month more than it releases. The district court’s double celling order in this case appropriates the department.” Appellants’ Brief at 20. Although defendants protest that they will have to transfer SCIP inmates to other state prisons in order to comply with the order, that is not necessarily the only option. The" }, { "docid": "13867522", "title": "", "text": "— U.S.-,-, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994)). The evidence, viewed in the light most favorable to Williams, only established a number of negligent acts which might be considered medical malpractice. Williams’ expert testified that the defendants’ actions were below the standard of care for the treatment of osteomyelitis and Brewer admitted that he failed to carefully read Williams’ medical history. Williams’ condition, though, was not ignored. Instead, he was given antibiotics which were deemed effective against a staph infection, the most common cause of osteo-myelitis. While the defendants did not immediately suggest debridement surgery, the testimony at trial indicated that such an invasive procedure possessed inherent risks. The decision to delay was a matter of judgment, rather than indifference. Williams argues, however, that there is language in some of our cases which indicates that such a pattern of negligent acts might amount to deliberate indifference. See French v. Owens, 777 F.2d 1250, 1254 (7th Cir.1985), cert. denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). Thus, Williams asserts that it would have been obvious to a doctor in the defendants’ positions that their actions amounted to a constitutional violation. Even if this evidence of repeated acts of medical malpractice is conceded, however, it was not clearly established during the period in question that such a pattern of negligent acts, without more, could constitute deliberate indifference. In Kelley v. McGinnis, 899 F.2d 612, 617 (7th Cir.1990), this court explicitly stated that “[w]e have yet to rule definitively on the validity of this theory of recovery under the Eighth Amendment.” Id. Thus, given the uncertainty in the law during this period, Brewer and Kurian are protected by qualified immunity for their actions in treating Williams. C. Finally, Williams argues that even if the defendants were cloaked with qualified immunity on his claim for damages, it cannot protect them from his claim for equitable relief. This claim for an injunction, however, was mentioned in Williams’ second amended" }, { "docid": "22599349", "title": "", "text": "Dep’t of Public Welfare, 257 N.W.2d 816, 819 (Minn.1977)); see also Rush v. Parham, 440 F.Supp. 383 (N.D.Ga. 1977), reversed on other grounds, 625 F.2d 1150 (5th Cir.1980); G.B. v. Lackner, 80 Cal.App.3d 64, 145 Cal.Rptr. 555 (1978); J.D. v. Lackner, 80 Cal.App.3d 90, 145 Cal. Rptr. 570 (1978). In each of these cases the court invalidated a state policy denying medicaid benefits for transsexual or “sex reassignment” surgery. In so doing, each court expressly rejected the notion that transsexual surgery is properly characterized as cosmetic surgery, concluding instead that such surgery is medically necessary for the treatment of transsexualism. See, e.g., J.D. v. Lackner, 80 Cal.App.3d at 96, 145 Cal.Rptr. at 572 (“We do not be lieve, by the wildest stretch of the imagination, that such surgery can reasonably and logically be characterized as cosmetic.”). Courts have repeatedly held that treatment of a psychiatric or psychological condition may present a “serious medical need” under the Estelle formulation. See, e.g., Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir.1986); Wellman v. Faulkner, 715 F.2d 269, 273 (7th Cir.1983), certiorari denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885; Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir.1980), certiorari denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239; Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.1979); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir.1977). There is no reason to treat transsexualism differently than any other psychiatric disorder. Thus contrary to the district court’s determination, plaintiff’s complaint does state a “serious medical need.” At oral argument it became apparent that the defendants’ real argument is that the plaintiff is not in fact a transsexual. However, this argument, challenging the factual allegations contained in plaintiff’s complaint, may not be made on a motion to dismiss, where, as already emphasized, the plaintiff’s allegations must be accepted as true. The defendants of course remain free to challenge the factual basis of plaintiff’s complaint in a motion for summary judgment pursuant to Fed.R.Civ.P. 56. It is worth noting though that plaintiff’s original pro" }, { "docid": "4620202", "title": "", "text": "STANDARD OF REVIEW . It is well established that in ruling on a motion to dismiss, the court must accept the factual allegations contained in the complaint as true. Fromm v. Rosewell, 771 F.2d 1089, 1091 (7th Cir.1985). Further, all reasonable inferences which can be drawn from the facts must be viewed in the light most favorable to the plaintiff. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle him or her to relief. Id. II. INDIVIDUAL ACTION OF DEFENDANT DANIKOLAS In her complaint, McDonald brought suit against defendant Danikolas only in his official capacity as Chief Judge of the Lake Superior Court. Danikolas now requests dismissal of plaintiff’s complaint against him on the grounds that he lacks any personal involvement in or responsibility for plaintiff’s discharge, as required by § 1983. In response to Danikolas’ request for dismissal, McDonald contends that Danikolas is a necessary party to this litigation. According to McDonald, if this Court finds reinstatement to be an appropriate remedy, Danikolas, as Chief Judge, is the only official capable of effecting reinstatement under Indiana law. It is well settled that to establish a § 1983 claim for damages, a plaintiff must demonstrate a defendant’s personal responsibility for deprivation of his constitutional rights. Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir.1985); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981). If the alleged deprivation involves an official, the personal responsibility requirement is satisfied if the official “acts or fails to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the constitutional depriva tion occurs at her direction or under her knowledge and consent.” Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982). Absent any personal involvement in the deprivation or any “deliberate or reckless disregard” for the plaintiffs constitutional rights, a complaint under § 1983 fails to establish a cause of action for damages against the official. In addition, the very language of" }, { "docid": "15858868", "title": "", "text": "PELL, Circuit Judge. William McClure, the plaintiff-appellant, appeals from the district court’s grant of judgment notwithstanding the verdict (judgment n. o. v.) in favor of defendantappellee, Stanley Cywinski. McClure had alleged that he was entitled to damages pursuant to section 1983, 42 U.S.C. § 1983 (1976), because he was discharged from his position with the Governor’s Office of Manpower and Human Development (GOM-AHD) as a result of his insistence on avoiding political involvement in his place of work. The principal issue on appeal is whether there was no evidence to support the jury’s verdict in favor of McClure. This determination turns on two issues: (1) whether there was any evidence that the plaintiff’s apolitical attitude was a motivating factor in his discharge and, if there was, whether the district court properly concluded that McClure would have been terminated even in the absence of protected activity, or, alternatively, (2) whether there was any evidence that defendant Cywinski caused McClure’s discharge. McClure also contends that the district court erred in reversing the jury’s award of punitive damages. The appellee asserts that, if the judgment n. o. v. cannot stand, we should affirm the district judge’s alternative disposition, the grant of a new trial. I. FACTS The nature of this appeal requires us to recite at some length the facts presented at trial. Because an appeal from a judgment n. o. v. requires us to consider all facts in the light most favorable to the party opposing the motion, Konczak v. Tyrrell, 603 F.2d 13, 15 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980), we shall rely on McClure’s version of events where there was a conflict in testimony. McClure, who had a background in chemistry and had previously worked for state agencies, became aware of an opening in an Occupational Safety and Health (OSHA) program run by GOMAHD in late September or early October, 1977. He discussed with Cywinski the program, which involved consultation with businesses to assist them in meeting OSHA regulations. Cywinski told McClure that the program had to meet certain requirements in" }, { "docid": "6150386", "title": "", "text": "in Whitley and to recognize the restriction in Canton, the court held “that an official or municipality acts with deliberate indifference if its conduct (or adopted policy) disregards a known or obvious risk that is very likely to result in the violation of a prisoner’s constitutional rights.” Id. at 1496. Thus, those circuits that have held repeated negligent acts indicating systemic deficiencies in the method of providing medical care may amount to deliberate indifference are within the standard enunciated in Berry. See Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir.1990); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977). Although this court has not directly addressed this issue, we have held that “prison officials may be liable where they are ‘deliberately indifferent to [a prisoner’s] constitutional rights, either because they actually intended to deprive him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates.’ ” Martin v. White, 742 F.2d 469, 474 (8th Cir.1984) (quoting Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir.1982)). In Glick v. Henderson, 855 F.2d 536 (8th Cir.1988), we stated that a plaintiff “could have a color-able claim under § 1983 if he could show that there is ‘a pervasive risk of harm to inmates’ of contracting the AIDS virus and if there is ‘a failure of prison officials to reasonably respond to that risk.’ ” Id. at 539-40 (quoting Martin, 742 F.2d at 474). The above-mentioned decisions support the district court’s conclusion that a consistent pattern of reckless or negligent conduct is sufficient to establish deliberate indifference to serious medical needs. And, the district court held that the continuing pattern of reckless and negligent conduct of the Stillwater officials amounted to such indifference. DeGidio, 704 F.Supp. at 955. The court’s finding that the Stillwater officials responded to the" }, { "docid": "14889471", "title": "", "text": "that defendants’ liability may be presumed until the defendants identify who was directly responsible. To support his argument that the burden of proof regarding causation should be shifted to defendants, Unwin cites only two tort cases, Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), and Ybarra v. Spanguard, 25 Cal.2d 486, 154 P.2d 687 (1944). Summers held two hunters jointly liable for plaintiffs injuries caused by being hit by gunshot negligently fired by both hunters where the defendants were unable to produce testimony as to which one of them had actually inflicted the plaintiff's injuries. Summers is clearly inapposite here because all the evidence shows that Fur-lone and Campbell, unlike both the defendants in Summers, did not act wrongly. This distinguishes this case from Summers which dealt with “one special type of situation in which the usual rule that the burden of proof as to causation is on the plaintiff has been relaxed. It may be called that of clearly established double fault and alternative liability.” W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 41, at 270-71 (5th ed. 1984) (hereinafter “Prosser and Keeton on Torts”). See Burton v. Waller, 502 F.2d 1261, 1282-84 (5th Cir.1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). There was no “clearly established double fault” in this ease. We also reject Unwin’s argument based on Ybarra. In Ybarra, an unconscious patient undergoing an operation suffered a traumatic injury, and res ipsa loquitur was applied against all of the doctors and hospital employees connected with the operation, although it seemed quite clear that not all of them could have been responsible. “The basis of the decision appears quite definitely to have been the special responsibility for the plaintiff’s safety undertaken by everyone concerned.” Prosser and Keeton on Torts § 39, at 252-53. We decline to follow Ybarra’s approach in this case for the same reasons the Seventh Circuit gave in Wellman v. Faulkner, 715 F.2d 269, 276 (7th Cir.1983) (civil rights action challenging prison conditions), cert. denied, 468 U.S. 1217, 104 S.Ct." }, { "docid": "23661713", "title": "", "text": "include. them in his complaint, so as to survive a motion for summary judgment, is not too onerous a burden to require him to bear. B. Was Appellant Deprived of Property Without Due Process? Appellant argues that as the result of defendants’ intentional act of destroying his papers and law books he was deprived of property without due process in violation of the Fourteenth Amendment. Unfortunately for appellant, the Supreme Court’s recent decisions in the area of property deprivations by prison officials have held that the Due Process Clause of the Fourteenth Amendment is simply not implicated by a negligent act of a state official, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986), nor by an intentional deprivation by a prison employee where the state has provided a meaningful post-deprivation remedy for the loss. Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984). Assuming the veracity of appellant’s characterization of defendants’ conduct as “intentional”, as we must on an appeal by the non-moving party from a summary judgment, the existence of the Indiana Tort Claims Act, I.C. 34-4-16.5-1 et seq., provides a constitutionally adequate remedy to redress property loss caused by a state officer and avoids appellant’s claim that he was intentionally deprived of his property without due process of law. Hudson, supra; Hendrix v. Faulkner, 525 F.Supp. 435 (N.D.Ind.), affirmed in part, vacated in part on other grounds, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). To the extent that appellant seeks to distinguish his case from Daniels and Hudson, appellant fails to realize that the common thread between the two cases, and their relevance to the instant case, is not their factual similarity but rather what each has to say about the extent to which the requirements of due process are implicated in a § 1983 suit and the extent to which due process can be satisfied by remedies other than a civil rights suit under § 1983. Thus, despite appellant’s assertion to the contrary, Daniels and" }, { "docid": "2324546", "title": "", "text": "defendant’s personal responsibility for the claimed deprivation of a constitutional right. Duckworth, 644 F.2d at 655. However, the personal responsibility requirement is satisfied if the official “acts or fails to act with a deliberate or reckless disregard of plaintiffs constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent.” Lash, 687 F.2d at 1005 (emphasis added). See also Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). Most importantly, in the context of excessive force police brutality cases brought pursuant to 42 U.S.C. § 1983, “it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge.” Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir.1972). See also Archie v. City of Racine, 847 F.2d 1211, 1222 (7th Cir.1988) (citing Byrd and noting that “if one police officer starts beating a suspect without cause, the state (through other officers) has a duty to rescue the suspect from this aggression”), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989); Czajkowski v. City of Chicago, 810 F.Supp. 1428, 1438 (N.D.Ill.1992) (applying Byrd). At trial, Officer Warren emphatically denied the beating of the plaintiff ever occurred yet, coincidentally, she failed to identify her colleagues in the jail elevator, although her recollection of many other details of the events of February 20-21, 1991, were remarkably clear. By adopting such a position, she effectively precluded herself from testifying (and in fact she did not so testify) that she did not have an opportunity to prevent, or attempt to prevent, the beating of Mr. Diebitz. As the plaintiff cogently argues, Officer Warren cannot now change her testimony post-trial, so as to relieve herself of liability to the plaintiff, and claim that she did not have an opportunity to protect the plaintiff from a beating that at trial she insisted" } ]

[ { "docid": "22287693", "title": "", "text": "because the officers never indicated the purpose of their search, an objectively reasonable person would not consider their consent to include the opening of a “closed paper bag shoved under the [car’s] seat.” 33 F.3d at 484. Rejecting this argument, we held that a general consent to search a car includes consent to open a paper bag inside it, at least when the defendant does not attempt to limit the scope of the search. Id.; accord United States v. Snow, 44 F.3d 133, 135 (2d Cir.1995). As in Crain, although the officers here made a general request for a search without identifying their objective, McSween never objected to the scope of the search. In such circumstances, a failure to object to the breadth of the search is properly considered “an indication that the search was within the scope of the initial consent.” United States v. Cannon, 29 F.3d 472, 477 (9th Cir.1994) (citation and internal quotation marks omitted). As this Court stated in Rich, the defendant, as the individual “knowing the contents of the vehicle,” has the “responsibility to limit the scope of the consent.” Rich, 992 F.2d at 507. Because McSween knew at the time of the search what the fire wall hid, he should have limited his consent, “if he deemed it necessary to do so,” id., to clarify any ambiguity from which he now seeks to benefit. Further supporting this conclusion is the fact that McSween gave Price his consent after helping Billings remove interior panelling in the hatchback. This sort of behavior could indicate to a reasonable officer that McSween meant to consent to more than a superficial search of his vehicle. In United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978), the Ninth Circuit confronted a factually indistinguishable situation. There, the defendant gave the officer permission to “look inside” his truck. After searching the truck’s cab and cargo areas, the officer opened the hood and found marihuana. In his motion to suppress, the defendant argued that the officer exceeded the scope of his" } ]

[ { "docid": "21423966", "title": "", "text": "knew about the guns in the house. On August 2, 2006, Special Agent Christopher Cannon with the ATF, applied for and received a search warrant for 14084 NW 2500 Road. He based the application in large part on the police report provided by Sergeant Chambers, as well as information from Ms. Troxel and other ATF agents. He said that but for the Anderson County investigation, he would not have applied for a search warrant for the Troxel’s residence. Also, he included information in the application about the “gun room,” such as that the gun vault was located within a room that Mr. Troxel did not allow Ms. Troxel to enter and that Mr. Troxel historically forbade her entry into the room despite there being no door on the hinges. That same day, he and other agents searched the house and recovered thirty firearms and ammunition from the vault in the “gun room.” DISCUSSION I. The officers did not exceed the scope of Ms. Troxel’s consent to search for Mr. Troxel. Mr. Troxel first argues that even assuming that Ms. Troxel had the authority to consent to the search of the “gun room” (discussed in Part II), the officers exceeded the scope of the consent to search for Mr. Troxel by entering into that room. He reasons that because there was no response to the officers yelling and moving about the residence, the chance that Mr. Troxel was present was unlikely. Because of the room’s small size, officers had a clear view of the room from the doorway and did not need to enter to complete the search for him in that room. He also alleges that the scope was exceeded when the officer looked into the ice cream bucket in which Mr. Troxel could not fit. “The scope of a search is generally defined by its expressed object.” United States v. Kimoana, 383 F.3d 1215, 1223 (10th Cir.2004) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). “Consent to search for specific items includes consent to search those areas or containers that might reasonably" }, { "docid": "9918748", "title": "", "text": "at 7 (District Court Decision). The name “CRUZ” was etched (perhaps with a ballpoint pen) on the phone. Officer Moore then drew Agent Gamarra’s attention to the phone; Agent Gamarra was able to see the word “CRUZ” without the flashlight and without touching the jacket. Noticing that the officers had seen the cellular phone, Ms. Armenia became upset. She directed Agent Gamarra outside, where she confirmed that Mr. Cruz-Mendez was in the bedroom closet. She told Agent Gamarra that he could search the bedroom, but she asked the officers to pretend to enter without her consent because she was afraid of Mr. Cruz-Mendez. After securing the rest of the apartment, Agents Gamarra and Derewonko found Mr. Cruz-Mendez hiding under a pile of clothes in the bedroom closet. They arrested him and read the Miranda warnings. He gave his name as Manuel Cruz-Mendez. About 25 or 30 minutes had passed since the officers first entered the apartment; a Provo Police Department Call for Service report indicates that, in the words of Officer Moore, they were “completely done” by 9:00 a.m. R. Vol. II at 195. The officers later discovered that the arrest warrant from Salt Lake City was not for Mr. Cruz-Mendez but for a man named Manuel Camarillo Cruz. Mr. Cruz-Mendez was charged with illegal reentry under 8 U.S.C. § 1326. He moved to suppress all evidence in the case, claiming violations of the Fourth Amendment. After conducting an evidentiary hearing, the district court issued a written decision and order holding that Mr. Cruz-Mendez had standing to contest the officers’ search but denying his motion to suppress evidence. Mr. Cruz-Mendez was found guilty on August 17, 2005, after a bench trial on stipulated evidence. He was sentenced to a term of 57 months in federal prison. II. DISCUSSION When reviewing a district court’s denial of a motion' to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the government. See Hunnicutt, 135 F.3d at 1348. “We accept the district court’s factual findings unless those findings are clearly erroneous.” United States v." }, { "docid": "21504265", "title": "", "text": "restraint” when he entered the country, as required under our § 1326 cases. See United States v. Zavala-Mendez, 411 F.3d 1116, 1119 (9th Cir.2005) (“a person is not ‘in’ the United States until he is not only physically present on our side of the border, but also enjoys ‘freedom from official restraint’ ”); United States v. Cruz-Escoto, 476 F.3d 1081, 1085-86 (9th Cir.2007) (“Aliens who ... sneak across the border in some illegitimate manner are under official restraint only if they are under constant governmental observation from the moment they set foot in this country until the moment of their arrest.” (citations, quotation marks, and alterations omitted)). The district court’s evidentiary decisions involving factual determinations are reviewed for abuse of discretion. See United States v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir.2000). We reverse only if, absent the error, the jury more probably than not would have reached a different verdict. See United States v. Ramirez, 176 F.3d 1179, 1182 (9th Cir.1999). Here, the government reopened its case to examine Torres after the district court ruled that it would give an instruction on freedom from official restraint. During direct examination, Torres explained that he had been working as the night scope operator on the night of Becerril’s arrest, and that he had tracked several people crossing the desert upon the suggestion of his dispatcher. Torres first saw these individuals in a canyon one-half-mile north of the border and directed another agent, Abel Rivera, to the location where he suspected they were hiding. During cross-examination, Torres backtracked on this story. He said he was in fact not familiar with the events of that evening: Q: But you’re saying now on this stand under oath that you specifically remember watching Mr. Becerril with your night scope on July 4th? A: I remember putting Agent Rivera in on a group and a scope. I cannot tell you who — who it is at all. Q: But you specifically remember looking through your night scope and everything that you did that night on July 4th? A: Not particularly, ma’am. Torres then testified that he" }, { "docid": "23099788", "title": "", "text": "have been unreasonable to expect the officers to act on that information, especially in light of his previous unqualified and unrestricted consent to search the van. When an individual gives general consent to search a vehicle, and thereafter volunteers that evidence may be found in a specific area inside it, he thereby indicates that a search for that evidence would be within the scope of the original consent. Cf. Cannon, 29 F.3d at 477 (“Failure to object to the continuation of a vehicle search after giving general consent to search is properly considered as an indication that the search was within the scope of the initial consent” (internal quotation marks omitted)); United States v. Mines, 883 F.2d 801, 804-05 (9th Cir.1989) (“Mines might have withdrawn or limited his consent, even during the search. His failure to do so indicates he consented to the entire search and everything it revealed”). Moreover, under the circumstances, Rodriguez-Preciado’s statement that drugs would be found behind the speaker itself constituted implied consent to search that area. Cf. Rosi, 27 F.3d at 413-14 (where individual, after impliedly consenting to agents’ request to enter condo, “volunteered to an agent that pertinent evidence might be found in a lamp” with the “full expectation that the agents would search it” and “did not object when they proceeded to do so,” district court did not clearly err in finding that individual “invited” agents to look in the lamp). In addition, the search of the van with a drug-sniffing dog was within the scope of Rodriguez-Preciado’s consent. See United States v. Perez, 37 F.3d 510, 515-16 (9th Cir.1994). In any event, nothing was found during that search. For the foregoing reasons, Rodriguez-Preciado’s motion to suppress was properly denied. We now turn to his remaining claims. III. Rodriguez-Preciado argues that one of the continuances granted by the trial court violated section 3161(c)(1) of the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). Rodriguez-Preciado waived his Speedy Trial Act claim by failing to move for dismissal before trial. See 18 U.S.C. § 3162(a)(2) (“Failure of the defendant to move for dismissal prior to" }, { "docid": "23454669", "title": "", "text": "from the 25768 House. After Special Agent Pettit told the family he wished to speak with Pineiro, Pineiro’s brother phoned him and, about 45 minutes later, Pineiro arrived in a van. The agents approached the van and identified themselves. They were armed, but their weapons were concealed. They told Pineiro they wanted to look around the 25768 House. Pineiro agreed, but stated he wanted to secure his dog before the agents entered the house. After Pineiro secured the dog in the garage, he walked with the agents through the house. Special Agent Pettit testified that Pineiro never indicated that he did not want the agents to enter his house, nor did he limit the scope of their search. Pineiro refused to sign a consent-to-search form, but verbally consented to the search. According to Agent Pettit, Pineiro moved the dog from the garage to permit agents to search the garage. During the search of the premises, Special Agent Pettit observed a partially dismantled grow room in one of the bedrooms, a marijuana plant in the backyard, and marijuana leaves on the floor throughout the house. The other agents found drug paraphernalia in the laundry room and more marijuana leaves and clippings concealed in garbage bags in the garage. In the house, specifically, the agents discovered construction debris, buckets, potting soil, clipping scissors, leaf fragments of suspected marijuana, a ballast or transformer used to power grow lights, a scale and tray used for weighing drugs, and a three-sided box or “hood” used for growing marijuana. In the kitchen, agents found a picture of Pineiro standing alongside trays of growing marijuana plants and holding a “bong” — a device used to smoke marijuana. Finally, in the garage, the agents also found PVC pipes commonly used as irrigation tubes in hydroponic marijuana grow operations. Agent Pettit read Pineiro his Miranda rights and questioned him. Pineiro signed a Miranda-rights waiver form and informed Pettit he had moved into the house on November 16, 2002, and admitted that the plants and drugs in the house belonged to him. When Pettit informed Pineiro of the search at" }, { "docid": "3960360", "title": "", "text": "Carmen Mendez. Sergeant Thomas Murray of the New York City Police Department headed the team that searched apartment 2J, occupied by plaintiffs Diana Penaloza Arce and Enrique Arce. Sergeant William F. Cook of the New York City Police Department headed the team that searched apartment 3D, occupied by plaintiffs Maria Rivera and Angel Santana. The Search of Apartment 2F The Mendezes dispute Special Agent Sullivan’s assertion that members of the search team knocked and announced their presence before employing a battering ram. (Mendez Aff. ¶ 7) It is not disputed that Santiago Mendez opened the door and admitted the police before the door was rammed through. Some members of the search team had their weapons drawn when they entered the apartment. Santiago Mendez asserted that when he demanded an explanation for the search, none was given. When asked if there were any guns or drugs in the apartment, Santiago Mendez led Officer Sullivan to his bedroom where he kept a gun and some marijuana, which he gave to the officer. The Men-dezes were forced to sit in the living room while the officers searched the bedroom. Carmen Mendez asked but was denied permission to call her job to say she would be late. (C. Mendez Aff. ¶ 3) No cocaine was found in the apartment. At the conclusion of the search, the Mendezes were given a copy of the search warrant. The Mendezes assert that the C/I could not have observed Molina use keys to their apartment because they had never given keys to anyone. (Mendez Aff. ¶ 4) The Search of Apartment 2J Diana Arce disputes that the search team knocked and announced its presence before beginning to batter the front door. (Arce Aff. ¶ 4) After the front door had already been knocked off its hinges, Diana Arce, carrying an infant in her arms, came to the door and attempted to open it. It was impossible by that point to open it, though, and she was asked to stand back while the search team knocked down the door. The officers entered the Arce apartment with drawn weapons. Diana" }, { "docid": "9918756", "title": "", "text": "that the officer be lawfully in a- position from which he can view the object. See id. at 737, 740-41, 103 S.Ct. 1535; United States v. Gonzalez-Acosta, 989 F.2d 384, 387 (10th Cir.1993). We have already concluded that Ms. Armenta voluntarily consented to the officers’ presence in the living room. The officers were thus lawfully in a position from which they could view the cellular phone. See Gonzalez-Acosta, 989 F.2d at 387. Mr. Cruz-Mendez appears to contend that the use of a flashlight converted the observation into a Fourth Amendment search. We note, however, that the district court found that Agent Gamarra was able to read the word “CRUZ” without the aid of the flashlight. In any event, the “use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.” Brown, 460 U.S. at 740, 103 S.Ct. 1535. The officers’ observation of the cellular phone did not violate the Fourth Amendment. D. Search of the Bedroom Mr. Cruz-Mendez claims that Ms. Armenta’s consent for the officers to search the bedroom was coerced. The district court found that Ms. Armenta had verbally consented to the search of her bedroom and that her consent was made “unequivocally, specifically, freely, and intelligently,” without coercion by the officers. R. Doc. 48 at 12 (District Court Decision). As we have already discussed, we review only whether the factual findings regarding consent were clearly erroneous. See Sawyer, 441 F.3d at 894. We cannot say that the district court’s findings were clearly erroneous. Although Ms. Armenta testified that she never consented to a search of the apartment, Agent Gamarra testified to the contrary and the district court credited his testimony. We see no reason not to defer to the court’s credibility determination. As for coercion, Mr. Cruz-Mendez contends that the officers’ questioning of Ms. Armenta without reasonable suspicion and the fact that Ms. Armenta is “presumptive ly uneducated,” Aplt. Br. at 24, render her consent involuntary. There is no merit to these arguments. Because we have already held that Ms. Armenta consented to the officers’ presence" }, { "docid": "9918757", "title": "", "text": "the officers to search the bedroom was coerced. The district court found that Ms. Armenta had verbally consented to the search of her bedroom and that her consent was made “unequivocally, specifically, freely, and intelligently,” without coercion by the officers. R. Doc. 48 at 12 (District Court Decision). As we have already discussed, we review only whether the factual findings regarding consent were clearly erroneous. See Sawyer, 441 F.3d at 894. We cannot say that the district court’s findings were clearly erroneous. Although Ms. Armenta testified that she never consented to a search of the apartment, Agent Gamarra testified to the contrary and the district court credited his testimony. We see no reason not to defer to the court’s credibility determination. As for coercion, Mr. Cruz-Mendez contends that the officers’ questioning of Ms. Armenta without reasonable suspicion and the fact that Ms. Armenta is “presumptive ly uneducated,” Aplt. Br. at 24, render her consent involuntary. There is no merit to these arguments. Because we have already held that Ms. Armenta consented to the officers’ presence in the living room, the officers were not required to have reasonable suspicion for their questioning. And there is nothing in the record to indicate that Ms. Armenta was uneducated. Mr. Cruz-Mendez also points, however, to several additional, more significant circumstances: the presence of several armed officers, the length of time the officers were in the apartment, and the officers’ statement that they would get a search warrant if Ms. Armenta did not consent. His argument is hardly frivolous and could have persuaded a rational fact-finder that the consent was involuntary. But it does not require setting aside the district court’s finding. First, the district court explicitly found that the officers were not overly threatening or forceful. Second, although the officers’ encounter with Ms. Armenta was more than momentary, the length did not necessarily make it overbearing. The district court found that the officers’ second visit to Ms. Armenia’s apartment lasted approximately 30 minutes before Mr. Cruz-Mendez was arrested. (The court’s time frame is consistent with the Provo Police Department Call for Service report, which" }, { "docid": "16261636", "title": "", "text": "and Thompson, that he was never told that he was not under arrest or free to leave. On this point, the district court explicitly believed the agents’ version, finding that Doubet was informed on at least one occasion — when the interview at the police station commenced — that he was not under arrest. Moreover, the district court found it important that after approximately thirty to forty minutes of questioning and his telephone conversation with his wife, Doubet refused to continue with questioning, would not give consent to a search, and requested to leave. According to the court, this was “inconsistent with the testimony that ... he felt he was wholly dominated or intimidated by the agents_” Suppression Hrg. at 92. The court also noted that once Doubet indicated he did not want to answer further questions, the agents terminated the interview. The district court had the opportunity to observe firsthand the witnesses’ credibility, and we do not find its determination clearly erroneous. We hold that it did not err in finding that Doubet was not in custody, and therefore not entitled to Miranda warnings. Relying on United States v. Rivera, 906 F.2d 319 (7th Cir.1990), and Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), Doubet further contends that his statements should have been suppressed because he was allegedly detained an unreasonable length of time prior to his arrest. In Rivera, the defendant unsuccessfully argued that cocaine found in his car should have been suppressed as evidence because the trooper’s investigative search greatly exceeded any legitimate duration and scope. Although we noted that “[t]he constitution restricts the duration of a seizure to the duration necessary to fulfill the seizure’s purpose,” Rivera, 906 F.2d at 322, we held that the trooper had not exceeded constitutional bounds in engaging in limited discourse with Rivera and his passenger. Although in dicta we stated the general principle that the duration of a seizure is not unlimited, the fact pattern in Rivera — a trooper’s investigative detention of a driver after the initial stop — is inapposite to the" }, { "docid": "9918758", "title": "", "text": "in the living room, the officers were not required to have reasonable suspicion for their questioning. And there is nothing in the record to indicate that Ms. Armenta was uneducated. Mr. Cruz-Mendez also points, however, to several additional, more significant circumstances: the presence of several armed officers, the length of time the officers were in the apartment, and the officers’ statement that they would get a search warrant if Ms. Armenta did not consent. His argument is hardly frivolous and could have persuaded a rational fact-finder that the consent was involuntary. But it does not require setting aside the district court’s finding. First, the district court explicitly found that the officers were not overly threatening or forceful. Second, although the officers’ encounter with Ms. Armenta was more than momentary, the length did not necessarily make it overbearing. The district court found that the officers’ second visit to Ms. Armenia’s apartment lasted approximately 30 minutes before Mr. Cruz-Mendez was arrested. (The court’s time frame is consistent with the Provo Police Department Call for Service report, which indicates that Ms. Armenta’s license was verified at 8:35 a.m. and that the arrest was completed by 9:00 a.m.) During that period Ms. Armenta had left to retrieve her license from the car, Agent Der-ewonko had searched the bathroom, Ms. Armenta had retrieved her green card, she had her conversation with Agent Gamarra outside, and the officers secured the apartment, searched the bedroom closet, and arrested Mr. Cruz-Mendez. This was not the equivalent of a lengthy interrogation in a bare room while the subject sits on a stool until her will is overborne. Cf Benally, 146 F.3d at 1240 (statement following one-and-a-half-hour interview after Miranda warning was not coerced); United States v. Strache, 202 F.3d 980, 986 (7th Cir.2000) (defendant who was handcuffed for 20 minutes before consenting nonetheless did so voluntarily); United States v. French, 974 F.2d 687, 693 (6th Cir.1992) (45 minutes between stop and consent did not amount to coercion); United States v. Tyson, 360 F.Supp.2d 798, 806 (E.D.Va.2005) (consent given 30 minutes after officers arrived; finding of voluntariness supported by initial" }, { "docid": "22950415", "title": "", "text": "entire house which lasted for 45 minutes to an hour; that no narcotics were found, but that the “agents seized a number of receipts and documents bearing aliases and variations of the defendant’s name which had come to the agents’ attention in the course of the conspiracy investigation culminating in the defendant’s indictment.” The court further found that during the course of the search, “Rosenthal reminded defendant that he did not have to allow the agents to search, but defendant replied that he had told them they could search all they wanted and that they wouldn’t find anything.” Finally, the court found that although defendant sought to call off the search 10 or 15 minutes before the agents actually left, they did not seize any evidence after that point in time. The court concluded that the evidence establishing defendant’s consent was “clear and positive” and that the “* * * attempted revocation of consent does not affect the materials sought to be suppressed because nothing was seized subsequent to it.” The district court’s findings of fact are supported by the record. After further pretrial proceedings, defendant filed a motion to reconsider the order denying the motion to suppress. The principal contention made in the motion to reconsider was that the items seized were beyond the scope of defendant’s consent, which was limited to a search for narcotics and, therefore, did not encompass evidence of income tax evasion. Judge Decker granted the motion to reconsider, took additional evidence, and then denied the motion to suppress for a second time. He reentered his original findings of fact and conclusions of law and, in addition, filed a memorandum opinion directed specifically to the question whether the seizure was beyond the scope of the search to which defendant had consented. He stated in part: “Upon the instant motion for reconsideration, defendant stresses that Dichiarinte’s consent extended only to a search for narcotics, not also to evidence of tax evasion.” The opinion then briefly reviewed the facts and applicable legal principles and stated: “A consensual search may, however, be restricted by the accused; specifically, Dichiarinte" }, { "docid": "19943864", "title": "", "text": "after the officers’ initial entry into Room 318. Agent Boucher then left the room and “advised a couple of the agents that we in fact had consent from Mr. Jones to search the motel room.” Agent Wolf testified that he was one of those whom Agent Boucher informed. According to Marshal Cooper, during this period the other officers detained Jones’s associates and performed a quick scan of the suite to make sure there were no hidden persons. Marshal Cooper took responsibility for one of the detainees and initially had him handcuffed and lying on the bathroom floor. Marshal Cooper testified that, at this point, it occurred to him to announce to the other officers that he had seen marijuana on the living room table, in case they wanted to seek a search warrant. Marshal Cooper continued: “One of the officers told me at that point that it’s okay, they already had consent.” Sometime soon thereafter, when Marshal Cooper was satisfied that the suite had been secured, he attempted to relocate the detainee to the kitchenette, where he searched the cabinet and found what he believed to be drugs. The district court credited Marshal Cooper’s testimony and found that the search occurred after Jones gave his consent. We see nothing in the record that would lead us to quarrel with this finding, much less to reach a “strong, unyielding belief that a mistake has been made,” as is required under the applicable standard of review. C.G. ex rel. A.S., 513 F.3d at 284 (citation and internal quotation marks omitted). Because Marshal Cooper’s search of the kitchen cabinet occurred after Jones gave consent and — as affirmed above — the scope of the consent extended to the kitchen cabinet, it was constitutionally valid. Given this conclusion, we need not state a view on the district court’s alternative ruling that the search was lawful in any event by virtue of the “independent source” doctrine. Finding no infirmity in the denial of Jones’s suppression motion, we proceed to examine the challenges relating to his sentence. B. Sentencing Jones raises two challenges to his sentence." }, { "docid": "15974205", "title": "", "text": "“Lucelli Pagan.” From the doorman, the agents learned that the daughter had returned to the apartment recently. The agents then went to apartment 5M. They knocked on the door, and announced in Spanish and English that they were the police. No one responded, but the agents heard people moving inside, as well as the sound of a television set. The agents then used one of the keys found in Sanchez’s handbag to open the door and entered the apartment. Two of the officers found a locked bathroom door. They repeatedly banged on it and shouted, “Police, police — open up the door.” A female responded that she was using the facility. A woman soon emerged from the bathroom after the toilet had been flushed. The agents escorted her to the living room, where a man found hiding in a second bathroom already was sitting. The woman identified herself as Maria Mendez; the agents did not ask whether she was “Disney” Mendez. The agents asked Mendez whether there were any drugs or weapons in the apartment. She responded, “No, you could look around.” The agents advised Mendez that she need not consent to a search, but when she was asked whether she would agree, she replied affirmatively. In the search, the agents found and seized the following: (1) traces of cocaine in a plastic bag found in the toilet in the bathroom from which Mendez emerged; (2) a .38 caliber revolver; (3) currency; (4) several notebooks; and (5) a small quantity of marijuana. Shortly after the search, another agent arrived with a photograph of Disney Mendez. Although there was a resemblance, the young woman found in the apartment was not Disney Mendez, but Disney’s sister, Maria. On the basis of the evidence found in 5M, Maria Mendez was arrested for violating the federal narcotics laws. 3. The following day, February 19, while Sanchez and her daughter were being arraigned in Brooklyn, Detective Vallely (one of the agents who had participated in the search of apartment 5M) inventoried all of the evidence seized the day before, including the contents of Sanchez’s handbag," }, { "docid": "570690", "title": "", "text": "his consent. We have stated that “[t]he scope of a consent search is limited by the breadth of actual consent, and whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of all the circumstances.” United States v. Torres, 32 F.3d 225, 230-31 (7th Cir.1994) (quotations omitted). Our standard in determining the scope of a suspect’s consent is that of objective reasonableness — “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. (quotation omitted). We have long recognized that “[gjovernment agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search.” United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir.1971). In Dichiarinte, we found that law enforcement officers had exceeded the scope of the defendant’s consent to search his home for narcotics when they read the defendant’s personal papers and then seized documents implicating the defendant in tax fraud. Id. at 130. The defendant had authorized only a search reasonably necessary to. determine the presence of narcot ics. The officers exceeded the scope of that consent when they went beyond what was necessary to determine if the defendant had hidden narcotics among his personal papers and started to read the papers to determine whether they evidenced other illegal activity. Id. The evidence, we held, should have been suppressed. Likewise, in United States v. Carey, 172 F.3d 1268 (10th Cir.1999), the Tenth Circuit found that law enforcement officers exceeded the scope of a warrant to search a defendant’s computer for documentary evidence “pertaining to the sale and distribution of controlled substances” when their search of the defendant’s hard drive uncovered evidence of possession of child pornography. Id. at 1272-73. During the search of the hard drive, law enforcement came across a number of files labeled “.JPG.” Upon opening the first “.JPG\" file, the agent found an image of child pornography. Rather than getting a separate warrant to" }, { "docid": "16224190", "title": "", "text": "legal findings de novo. United States v. Minjares-Alvarez, 264 F.3d 980, 983-84 (10th Cir.2001). It is well settled that voluntary consent can obviate the warrant requirement of the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). However, “[t]he scope of a search ... is limited by the breadth of the consent given.” United States v. Elliott, 107 F.3d at 814-15 (10th Cir.1997) (internal citations omitted). We apply an “objective reasonableness” standard to the scope of consent, asking what “would the typical reasonable person have understood by the exchange[.]” Id. We examine the totality of the circumstances when determining whether a search was within the scope of the consent. United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1231 (10th Cir.1998). As a preliminary matter, the record shows that Brooks never explicitly argued to the district court that the officers’ search exceeded his consent. His only argument to the district court was that his consent to the home search was not knowingly and voluntarily given. Accordingly, since Brooks failed to raise the issue below, we review for plain error. See United States v. Walser, 275 F.3d 981, 985 (10th Cir.2001). We find no error here. The record is clear that the officers did not expand their search of Brooks’s computer nor overstep the bounds of Brooks’s consent. As previously discussed, at the point Agent Snyder obtained Brooks’s permission to search the computer, Snyder told Brooks the search would be conducted with a computer disk that would automatically search for image files. Brooks argues that his consent was therefore limited to the specific software-driven pre-search Snyder initially described, and the images obtained during Snyder’s subsequent manual search should have been suppressed. We disagree that the search exceeded an objectively reasonable interpretation of Brooks’s consent for several reasons. First, the scope of Snyder’s search did not, in fact, exceed the permission Brooks granted in his written consent. In the consent form, Brooks agreed to the following: a “complete search” of the “CPU tower ... belonging to Brent Brooks to conduct a pre-search for child pornography.” ROA," }, { "docid": "23454668", "title": "", "text": "a marijuana-growing operation at multiple locations in Miami, Florida. His subsequent investigation led to surveillance of a house located at 16001 S.W. 98th Avenue (“16001 House”). During surveillance at this location, Agent Pettit observed Pineiro’s black Chevy Tahoe sports utility vehicle (“SUV”), which had white lettering on the side, parked outside. He subsequently obtained a warrant to search the 16001 House. During his search on December 12, 2002, Pettit discovered a fully functional marijuana grow site on the premises. Also at the 16001 House, the agents encountered Lazaro Vazquez, who denied knowing Pineiro and who was subsequently arrested. In the course of his investigation of the 16001 House, Pettit learned that two other homes were associated with this location. Based on this information, four special agents went to the next house associated with the 16001 House, this one at 25768 S.W. 123rd Court (“25768 House”), where they encountered Pineiro. Prior to obtaining Pineiro’s consent to search the 25768 House, the agents spoke with Pineiro’s parents and brother, all of whom lived directly across the street from the 25768 House. After Special Agent Pettit told the family he wished to speak with Pineiro, Pineiro’s brother phoned him and, about 45 minutes later, Pineiro arrived in a van. The agents approached the van and identified themselves. They were armed, but their weapons were concealed. They told Pineiro they wanted to look around the 25768 House. Pineiro agreed, but stated he wanted to secure his dog before the agents entered the house. After Pineiro secured the dog in the garage, he walked with the agents through the house. Special Agent Pettit testified that Pineiro never indicated that he did not want the agents to enter his house, nor did he limit the scope of their search. Pineiro refused to sign a consent-to-search form, but verbally consented to the search. According to Agent Pettit, Pineiro moved the dog from the garage to permit agents to search the garage. During the search of the premises, Special Agent Pettit observed a partially dismantled grow room in one of the bedrooms, a marijuana plant in the backyard," }, { "docid": "3960396", "title": "", "text": "that the agents had a proper warrant, that warrant did not place the occupants of the apartment or their possessions at the agents’ mercy, beyond the protection of the Fourth Amendment. Governmental conduct throughout a search or seizure must meet a standard of objective reasonableness. United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985). Officers’ actions must be “objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, — U.S.-, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). “The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967), quoting Terry v. State of Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). However, “it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search warrant — subject, of course, to the general Fourth Amendment protection ‘against unreasonable searches and seizures.’ ” Dalia v. United States, 441 U.S. 238, 257, 99 S.Ct. 1682, 1693, 60 L.Ed.2d 177 (1979). Plaintiffs contend that the manner in which the individual defendants executed the search warrants violated the Fourth Amendment. (Plaintiffs’ Brief at 45-50) The three sets of plaintiffs criticize the “ferocity” of the searches (Plaintiffs’ Brief 48-50) and allege that the searches were excessively thorough. (Rivera Aff. ¶ 14, Arce Aff. ¶ 7, Mendez Aff. 11 10) Plaintiffs Carmen Mendez and Diana Penaloza Arce assert that they were denied the right to make a telephone call during the search. (Arce Aff. 11 6, Mendez Aff. 113) Plaintiffs Rivera and Santana allege that they were held at gunpoint, handcuffed, and that plaintiff Rivera was strip searched, all in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. It was within the officers’ discretion for the search teams to approach the apartment doors and to enter the three apartments" }, { "docid": "13064519", "title": "", "text": "1997, in front of his home in Jacksonville, North Carolina, by armed NCIS agents. He was made to lie facedown on the ground, as his hands were cuffed behind his back. The apprehension, however, began to attract the attention of people driving by. At one point, an agent had to instruct the occupants of a stopped vehicle to leave the area, causing another agent to ask the appellant if they could relocate to his home. The appellant agreed. Prior to entering the home, the appellant had his 18-year-old stepdaughter come outside. The agents then entered and conducted a brief security sweep of all the rooms and closets for anyone else that might be hiding inside before bringing the appellant into his home, where he was seated on a sofa in the living room. During their security sweep, the agents did not conduct a search for evidence. When asked if he would consent to a search of his home, the appellant declined. Shortly afterwards, however, he offered to allow a search if his stepdaughter could remain there. The supervising agent declined the offer because of the condition attached to it. Although the agents had the appellant in custody inside the home, they initiated their search on 9 October 1997 only after receiving telephonic notification that his wife, who had been apprehended separately that morning at her place of work and taken to the Jacksonville Police Department for interrogation, consented to the search their home. She later consented, as well, to an additional search of their home on 17 October 1997. During these searches, the agents recovered property that had been stolen, as well as weapons used to commit charged offenses. The appellant moved at trial to suppress this evidence, arguing that the agents entered his home without his permission and that neither he nor his wife consented to the searches of their home. He further argued that, even if his wife had consented, the agents exceeded the scope of that consent. After receiving evidence and argument on the motion, the military judge denied the motion to suppress and appended his essential" }, { "docid": "22950397", "title": "", "text": "in narcotics; and there was no indication that they desired to look for anything other than narcotics themselves. When defendant became aware that the agents were inspecting and seizing his personal papers, he attempted to call off the search. Under these circumstances, defendant’s statement that the agents could “come over to the house and look” must be taken to mean at most that they might come and conduct only such a search as would be necessary to establish whether he had any narcotics. Government agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search. A consent search is reasonable only if kept within the bounds of the actual consent. Honig v. United States, 208 F.2d 916, 919 (8th Cir. 1953). In the case before us the defendant’s consent set the parameters of the agents’ conduct at that which would reasonably be necessary to determine whether he had narcotics in his home. But the agents went beyond what was necessary to determine whether defendant had hidden narcotics among his personal papers; they read through those papers to determine whether they gave any hint that defendant was engaged in criminal activity. This was a greater intrusion into defendant’s privacy than he had authorized and the fourth amendment requires that any evidence resulting from this invasion be suppressed. Our holding that the search was unreasonable because it went beyond the scope of defendant’s consent would be the same if the agents had conducted the search under a search warrant which authorized the seizure of narcotics. Such a warrant would not have given the agents the power to read defendant’s personal papers. Cf. Woo Lai Chun v. United States, 274 F.2d 708 (9th Cir. 1960). The concurring opinion of Mr. Justice Stewart in Stanley v. Georgia, 394 U.S. 557, 569, 89 S.Ct. 1243, 22 L. Ed.2d 542 (1969), is instructive on this point. In that ease, state and federal officers gained admission to Stanley’s house under a search warrant authorizing" }, { "docid": "9918759", "title": "", "text": "indicates that Ms. Armenta’s license was verified at 8:35 a.m. and that the arrest was completed by 9:00 a.m.) During that period Ms. Armenta had left to retrieve her license from the car, Agent Der-ewonko had searched the bathroom, Ms. Armenta had retrieved her green card, she had her conversation with Agent Gamarra outside, and the officers secured the apartment, searched the bedroom closet, and arrested Mr. Cruz-Mendez. This was not the equivalent of a lengthy interrogation in a bare room while the subject sits on a stool until her will is overborne. Cf Benally, 146 F.3d at 1240 (statement following one-and-a-half-hour interview after Miranda warning was not coerced); United States v. Strache, 202 F.3d 980, 986 (7th Cir.2000) (defendant who was handcuffed for 20 minutes before consenting nonetheless did so voluntarily); United States v. French, 974 F.2d 687, 693 (6th Cir.1992) (45 minutes between stop and consent did not amount to coercion); United States v. Tyson, 360 F.Supp.2d 798, 806 (E.D.Va.2005) (consent given 30 minutes after officers arrived; finding of voluntariness supported by initial refusal to permit warrant-less search). Most helpful to Mr. Cruz-Mendez is Agent Gamarra’s assertion to Ms. Armenta that he would get a search warrant if she did not consent. But such statements are not per se coercive. See United States v. Severe, 29 F.3d 444, 446 (8th Cir.1994) (officers’ statement that they would obtain a search warrant “only one factor in the totality of the circumstances”); United States v. White, 979 F.2d 539, 542 (7th Cir.1992) (although baseless threats to obtain a warrant may render consent involuntary, an expression of a genuine intent to obtain one does not); United States v. Hummer, 916 F.2d 186, 190 (4th Cir.1990) (“The fact that a search warrant was mentioned does not necessarily constitute a coercive factor negating consent.” (internal quotation marks omitted)); United States v. Agosto, 502 F.2d 612, 614 (9th Cir.1974) (officer’s statement that he would obtain a warrant if consent not given is “not conclusive as a matter of law”); cf. United States v. Culp, 472 F.2d 459, 462 (8th Cir.1973) (defendant’s consent valid even though" } ]

[ { "docid": "22768460", "title": "", "text": "Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989), we affirmed the district court’s conclusion that the trustees of a self-funded' employee benefit plan acted in an arbitrary and capricious manner by refusing to pay a beneficiary’s medical bills. We did not reach any issue related to conflicting interests because the trustees’ decision did not survive the most deferential standard of review. See id. at 39. In Moon v. American Home Assurance Co., 888 F.2d 86 (11th Cir.1989), we applied the de novo standard of review to the denial of benefits by an insurance company on a death benefits policy. An individual, not the insurance company, was the administrator of the plan and no discretionary authority was vested in the company (thus precluding it from gaining fiduciary status). Id. at 88. We naturally had no occasion to examine the arbitrary and capricious standard. Similarly, in Baker v. Big Star Div. of the Grand Union Co., 893 F.2d 288 (11th Cir.1989) (as amended), we remanded a case for application of the de novo standard to the denial of a claim for disability benefits by an insurance company that acted as claims administrator for a self-insured plan. We absolved the insurance company of either ERISA plan administrator or fiduciary status based on its purely ministerial role as an administrative servicing agent for claims processing. Id. at 290. Because the insurance company did not pay the benefits from its coffers and did not exercise discretion under the employee benefit plan, Baker does not shed light on the issues that presently concern us. Finally, in Jett v. Blue Cross & Blue Shield of Alabama, 890 F.2d 1137 (11th Cir.1989), we applied the arbitrary and capricious standard to the benefits determination made by an insurance company pursuant to a clause conferring discretionary authority in nearly the same terms as the ERISA plan in this case. The crucial difference in Jett, however, is the lack of any conflicting interest on the part of the insurance company. The plan was self-insured, with the insurance company acting as administrator and receiving full reimbursement from the plan sponsor for covered" } ]

[ { "docid": "6755355", "title": "", "text": "abuse of discretion. Id. The Eleventh Circuit subsequently identified three varying standards of review that a court may apply in reviewing a plan administrator’s claims decisions under ERISA: “(1) de novo where the plan does not grant the administrator discretion; (2) arbitrary and capricious [where] the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where there is a conflict of interest.” Buckley v. Metropolitan Life, 115 F.3d 936, 939 (11th Cir.1997); Marecek v. BellSouth Telecommunications, Inc., 49 F.3d 702, 705 (11th Cir.1995). When reviewing a denial of benefits under the de novo standard of review, where the plan does not grant the administrator discretion, the court may examine facts not before the administrator. Kirwan v. Marriott Corp., 10 F.3d 784, 790 n. 31 (11th Cir.1994) (citations omitted) . On the other hand, under the arbitrary and capricious standard, where the plan expressly grants the administrator discretion, the court may consider only the administrative record. Lee v. Blue Cross/Blue Shield, 10 F.3d 1547, 1550 (11th Cir.1994); Jett v. Blue Cross and Blue Shield of Alabama, Inc., 890 F.2d 1137, 1139 (11th Cir.1989). Plaintiff argues that under the analysis set forth in HCA Health Servs. of Ga. v. Employers Health Ins. Co. 240 F.3d 982, 995 (11th Cir.2001) the court may examine facts outside of the administrative record under the heightened arbitrary and capricious standard. The Eleventh Circuit in HCA described the process a court should follow in reviewing benefits determinations of claims administrators in ERISA cases. Id. at 993. First, the court must look at the plan documents to determine whether the claims administrator is given discretion. Id. at 993. If the plan does not expressly vest discretion in the administrator, the administrator’s decision is not afforded deference. The proper standard is de novo review which includes consideration of facts not before the claims administrator. See Kirwan, 10 F.3d at 789-790 and n. 31(eitations omitted). If the court finds that the plan grants discretion to the claims administrator, regardless of whether the arbitrary and capricious standard or the heightened arbi trary and capricious standard applies, the court next" }, { "docid": "11287959", "title": "", "text": "an administrator who has been granted discretion under the plan has a conflict of interest, a “heightened” arbitrary and capricious standard governs. Id. at 1449. Such a conflict of interest exists where a plan is administered by an insurance company which pays benefits out of its own assets. See, e.g., Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1561-68 (11th Cir.1990). Under this heightened arbitrary and capricious standard, “a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries.” Godfrey v. BellSouth Telecomms., Inc., 89 F.3d 755, 758 (11th Cir.1996) (quoting Brown, 898 F.2d at 1566-67). This principle is limited by an important precondition: “ ‘[t]he fiduciary’s interpretation first must be ‘wrong’ from the perspective of a de novo review[.]’ ” Godfrey, 89 F.3d at 758 (quoting Brown, 898 F.2d at 1566 n. 12). In Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132 (11th Cir.2004), the Eleventh Circuit outlined a step-by-step analytical process for evaluating ERISA claims. Under this multi-step approach, a district court must (1) Apply the de novo standard to determine whether the claim administrator’s benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator’s decision in fact is “de novo wrong,” then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is “de novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the" }, { "docid": "12823559", "title": "", "text": "two. Id. The Eleventh Circuit set forth the analytical framework of the heightened arbitrary and capricious standard of review in Williams: (1) Apply the de novo standard to determine whether the claim administrator’s benefits-denial decision is ‘wrong’ (ie., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator’s decision is in fact ‘de novo wrong,’ then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is ‘de novo wrong’ and he was vested with discretion in reviewing claims, then determine whether ‘reasonable’ grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict of interest, then apply heightened arbitrary and capricious review to the decision to affirm or deny it. 373 F.3d at 1138. In other words, if the Court, applying the de novo standard, concludes that the denial was not “wrong,” the inquiry ends. See id. (concluding that decision to deny benefits was not “wrong” under de novo standard, thereby obviating need to perform heightened arbitrary and capricious review); HCA, 240 F.3d at 993 (“Regardless of whether arbitrary and capricious or heightened arbitrary and capricious review applies, the court evaluates the claim administrator’s interpretation of the plan to determine whether it is ‘wrong.’ ”). See also id. citing (Godfrey v. BellSouth Telecommunications, Inc., 89 F.3d 755, 758 (11th Cir.1996) (“we first conduct a de novo review to decide if the [claims administrator’s] determination was wrong.”); Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1566 n. 12 (11th Cir.1990) (“[i]t is fundamental that the fiduciary’s interpretation first must be ‘wrong’ from the perspective of de novo review before a reviewing court is concerned with" }, { "docid": "22139703", "title": "", "text": "EDENFIELD, District Judge: I. Background Claiming debilitating depression, appellant Marcia Williams applied for benefits under her employer's (BellSouth Telecommunications, Inc.'s) disability plan. Unconvinced that her impairments completely prevented her from working, Kemper Risk Management Services, Inc. (Kemper)-the company BellSouth hired to administer claims -denied the claim because she did not meet the plan's disability definition. Invoking Employee Retirement Income Security Act (ERISA) jurisdiction, 29 U.S.C. §§ 1001, et seq., Williams challenged that decision in district court. Applying the arbitrary and capricious review standard, the district court found that available medical evidence supported Kem-per’s non-disability determination, so it granted BellSouth summary judgment. Williams appeals, contending that: (1) the district court applied the wrong standard of review and (2) even under the arbitrary and capricious standard, the denial of benefits was improper. II. Analysis A. Standard of Review on Appeal We review the district court’s ruling de novo, applying the same legal standards that governed the district court’s disposition. Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir.2003); Nat’l Fire Ins. Co. of Hartford v. Fortune Const. Co., 320 F.3d 1260, 1267 (11th Cir.2003). B. ERISA Review Standard ERISA provides no standard for reviewing decisions of plan administrators or fiduciaries. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Shaw v. Connecticut Gen. Life Ins. Co., 353 F.3d 1276, 1282 (11th Cir.2003); Marecek v. Bell-South Telecomms., Inc., 49 F.3d 702, 705 (11th Cir.1995). But Firestone established three distinct standards for reviewing administrators’ plan decisions: “(1) de novo where the plan does not grant the administrator discretion [i.e., does not exercise discretion in deciding claims;] (2) arbitrary and capricious [where] the plan grants the administrator [such] discretion; and (3) heightened arbitrary and capricious where [the plan grants the administrator such discretion but] ... [he has] ... a conflict of interest.” HCA Health Servs. of Geor gia., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001) (quoting Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir.1997)); Shaw, 353 F.3d. at 1282. Williams contends that, because Bell-South both funded and administered the" }, { "docid": "12823558", "title": "", "text": "arbitrary and capricious where [the plan grants the administrator such discretion but] ... [he has] ... a conflict of interest. Id. (quoting HCA Health Servs. of Georgia, Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001)). The Policy gave Hartford “full discretion and authority to determine eligibility for benefits and to construe and interpret all terms” of the Policy. (Ex. A. p. 14.) Since Hartford both funded and administered the Policy, the Court will review its decision under a heightened arbitrary and capricious review standard. (Defs’ Stmt of Facts, ¶ 1, 3.) “[T]he distinctions between the heightened arbitrary and capricious, arbitrary and capricious, and de novo standards of review have become difficult to discern over time.” Williams, 373 F.3d at 1137. De novo review affords no deference to the administrator’s decision. Id. The arbitrary and capricious standard is akin to the “abuse of discretion” standard. Id. (citing Shaw v. Connecticut Gen. Life Ins. Co., 353 F.3d 1276, 1284-85 n. 6 (11th Cir.2003)). The heightened arbitrary and capricious standard falls “somewhere between” the two. Id. The Eleventh Circuit set forth the analytical framework of the heightened arbitrary and capricious standard of review in Williams: (1) Apply the de novo standard to determine whether the claim administrator’s benefits-denial decision is ‘wrong’ (ie., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator’s decision is in fact ‘de novo wrong,’ then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is ‘de novo wrong’ and he was vested with discretion in reviewing claims, then determine whether ‘reasonable’ grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict of" }, { "docid": "23330959", "title": "", "text": "plan administrator or fiduciary.” Marecek v. BellSouth Telecomms., Inc., 49 F.3d 702, 705 (11th Cir.1995) (citing Firestone, 489 U.S. at 109, 109 S.Ct. at 953). Instead, the United States Supreme Court established in Firestone three distinct standards for reviewing administrators’ plan interpretations: “(1) de novo where the plan does not grant the administrator discretion[;] (2) arbitrary and capricious [where] the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where there is a conflict of interest.” HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001) (quoting Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir.1997)). In order to determine the appropriate standard of review, a court is required to examine “all of the plan documents.” Cagle v. Bruner, 112 F.3d 1510, 1517 (11th Cir.1997) (emphasis added). “If the court finds that the documents grant the claims administrator discretion, then at a minimum, the court applies arbitrary and capricious review and possibly heightened arbitrary and capricious review.” HCA Health Servs., 240 F.3d at 993. In this case, Connecticut General suggests that there are two documents relating to the plan in the record: (1) the Connecticut General Group Long-Term Disability Contract (the “underlying policy”); and (2) the Summary Plan Description (the “SPD”). The parties do not dispute that the underlying policy contains no express grant of discretion to the administrator and that absent any express grant, under controlling precedent, we apply a de novo standard of review to a claims administrator’s benefits decision. See, e.g., Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37, 38-39 (11th Cir.1989) (“[ERISA] actions must be reviewed de novo unless the plan expressly gives the administrator discretionary authority to make eligibility determinations or to construe the plan’s terms.” (emphasis added)). Connecticut General points out that the SPD in this case clearly gives the claims administrator broad discretion over plan interpretation. Indeed, the SPD expressly provides that “Connecticut General has the right to determine eligibility for benefits and to interpret the terms and provisions of the plan[, and its] decision is conclusive and binding,” which is" }, { "docid": "20571156", "title": "", "text": "of benefits decision in an ERISA case. See HCA Health Servs. of Ga., Inc., v. Employers Health Ins. Co., 240 F.3d 982, 993-95 (11th Cir.2001). “At each step, the court makes a determination that results in either the progression to the next step or the end of the inquiry.” Id. at 993. In step one, a court must determine which standard to apply in reviewing the claims administrator’s benefits decision. Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888, 912 (11th Cir.1997). ERISA itself does not provide the appropriate standard. Firestone, 489 U.S. at 108-09, 109 S.Ct. at 953 (1989); Marecek v. BellSouth Telecomms., Inc., 49 F.3d 702, 705 (11th Cir.1995). A court chooses the appropriate standard after examining the plan documents to determine whether they grant the administrator discretion to interpret disputed terms. HCA, 240 F.3d.at 993. If the court finds that the documents do not grant the administrator discretion, it applies de novo review to the administrator’s benefits determination and does not proceed to the remaining steps. Firestone, 489 U.S. at 115, 109 S.Ct. at 956-57; Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir.1997). “If the court finds that the documents grant the claims administrator discretion, then at a minimum, the court applies arbitrary and capricious review and possibly heightened arbitrary and capricious review” and proceeds to the second step. HCA, 240 F.3d at 993. In step two, regardless of whether arbitrary and capricious review or the heightened form of that standard of review applies, the court reviews de novo the claims administrator’s interpretation of the plan to determine whether it is “wrong.” HCA, 240 F.3d at 993. ‘“Wrong’ is the label used by our precedent to describe the conclusion a court reaches when, after reviewing the plan documents and disputed terms de novo, the court disagrees with the claims administrator’s plan interpretation.” Id. at 993 n. 23. If the court determines that the administrator’s interpretation is right, the inquiry ends, but if it determines that the interpretation is wrong, the court proceeds to step three. See id. at 993-94. In step three, the court decides whether" }, { "docid": "23127546", "title": "", "text": "the administrator discretion; and (3) heightened arbitrary and capricious where the plan grants the administrator discretion and the administrator has a conflict of interest. See Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir.1997). Recent cases from this circuit have expanded the Firestone test into a six-step analysis to guide district courts in reviewing an administrator’s benefits decision: (1) Apply the de novo standard to determine whether the claim administrator’s benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator’s decision in fact is “de novo wrong,” then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is “de novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict of interest, then apply heightened arbitrary and capricious review to the decision to affirm or deny it. Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir.2004) overruled on other grounds by Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352 (11th Cir.2008). Until recently, the hallmark of the heightened arbitrary and capricious standard was its burden shifting requirement. When a plan administrator had a conflict of interest by both reviewing and paying claims, “the burden shifts to the fiduciary to prove that its interpretation of plan provisions committed to its discretion was not tainted by self-interest.” Brown v. Bhie Cross & Blue Shield of Ala. Inc., 898 F.2d 1556, 1566 (11th Cir.1990). However, in Metropolitan Life Ins. Co. v. Glenn, the Supreme Court called into question the Eleventh Circuit’s heightened arbitrary and capricious" }, { "docid": "6755357", "title": "", "text": "evaluates the claims administrator’s decision to determine whether it is “wrong.” HCA, 240 F.3d at 993. The Eleventh Circuit has explained that “ ‘[w]rong’ is the label used by our precedent to describe the conclusion a court reaches when, after reviewing the plan documents and disputed terms de novo , the court disagrees with the claims administrator’s plan interpretation.” Id. at 993 n. 23. If the court finds that the determination is “wrong,” it must then decide whether “the claimant has proposed a ‘reasonable’ interpretation of the plan.” HCA, 240 F.3d at 994 (quoting Lee v. Blue Cross/Blue Shield, 10 F.3d 1547, 1550 (11th Cir.1994)). Even if the court determines that the claimant’s interpretation is reasonable, the claimant does not necessarily prevail because the plan grants the administrator discretion to interpret the plan and the administrator is entitled to the benefit of its contractual bargain. Id. Next, the court determines whether the claims administrator’s “wrong” interpretation is nonetheless reasonable. Id. If the court determines that the administrator’s wrong interpretation is reasonable, the decision is entitled to deference unless the administrator suffers from a conflict of interest. Id. Therefore, the next step in the analysis requires the court to gauge the self-interest of the claims administrator. Id. If a conflict of interest exists, the heightened arbitrary and capricious standard applies. HCA, 240 F.3d at 994. In applying the heightened arbitrary and capricious standard, the court follows the same steps as the ordinary arbitrary and capricious standard, but given the claims administrator’s self interest, it continues the inquiry. Id. At this step, the burden shifts to the claims administrator to prove that its interpretation of the plan is not tainted by self interest. Id. If the administrator satisfies its burden and demonstrates that its wrong but reasonable interpretation benefits the participants and beneficiaries of the plan, an ERISA claimant may still be successful if he can show by other measures that the administrator’s decision was arbitrary and capricious. Id. at 994. If the claims administrator fails to satisfy this burden, this does not mean that the ERISA claimant prevails, but rather that" }, { "docid": "22565877", "title": "", "text": "the conflicting interest of the fiduciary at the expense of the affected beneficiary” was arbitrary and capricious, unless the administrator “justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries.” Id. at 1567. Our more recent cases condense the holdings of Firestone and Brown into a six step analysis to guide district courts in reviewing an administrator’s benefits decision: (1) Apply the de novo standard to determine whether the claim administrator’s benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator’s decision in fact is “de novo wrong,” then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is “de novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict of interest, then apply heightened arbitrary and capricious review to the decision to affirm or deny it. Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1138 (11th Cir.2004) (summarizing analysis set forth in HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993-95 (11th Cir.2001)) (footnotes omitted). The district court began its discussion in this case by noting that ChoicePoint’s plan vested Liberty Life with discretion in making claims decisions (step 2). The court next found that genuine issues of material fact precluded a determination of whether Liberty Life’s decision was right or wrong; so, for purposes of summary judgment, the court assumed that Liberty Life’s decision was wrong (step 1). Next, the court recited the measures taken by Liberty Life in reviewing Doyle’s claim" }, { "docid": "14429590", "title": "", "text": "of the Plan. (A.R.404). Accordingly, the arbitrary and capricious standard applies to a review of the administrator’s decision, absent a conflict of interest, whereupon a heightened arbitrary and capricious standard applies. See Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, (11th Cir.2004). Where, as here, the plan administrator acts as the insurer of the plan, the heightened arbitrary and capricious standard applies. Id. However, the fiduciary’s decision must be ‘wrong’ from the perspective of de novo review before the self interest of the fiduciary is considered. A decision is ‘wrong’, if after reviewing the record and plan documents de novo, the court disagrees with the administrator’s interpretation of the plan. See HCA Health Services of Georgia, Inc. v. Employers Health Insurance Co., 240 F.3d 982, 995 (11th Cir.2001); Williams v. Bell-South Telecommunications, Inc., 373 F.3d at 1137-38. If this court does not disagree with the administrator, the inquiry ends. Id. Discussion While the parties place some emphasis on whether and when Plaintiff was actually diagnosed with fibromyalgia, the operative inquiry is whether Plaintiff was disabled within the meaning of the Plan’s language as of the date of her resignation. Under the relevant provisions of the Plan, Plaintiff was not eligible to receive disability benefits unless she was prevented by her illness “from performing one or more of the Essential Duties” of her occupation. Defendant denied Plaintiff benefits because it concluded that Plaintiffs medical records did not support restrictions or limitations which would prevent Plaintiff from performing hqr position as an IS Help Desk Specialist. After a de novo review of the administrative record, this Court concludes that Defendant’s interpretation and decision to deny benefits was not wrong. Plaintiff saw four different physicians in the weeks prior to and after her resignation. None of those doctors made any notation that she was unable to work or medically restricted from doing so. The physicians’ office notes merely document Plaintiffs self-reported symptoms and contain numerous test results, most of which were normal. Significantly, Plaintiffs treating physician noted “OK to work” in her file less than two weeks before her resignation. The only physician" }, { "docid": "14429589", "title": "", "text": "Disabled throughout the Elimination Period; 3. you remain Disabled beyond the Elimination Period; 4. you are, and have been during the Elimination Period, under the Regular Care of a Physician; and 5. you submit Proof of Loss satisfactory to us.” (A.R.404) Standard of Review ERISA does not provide a standard of review for decisions by a plan administrator or fiduciary in actions challenging benefit determinations under § 1132(a)(1)(B). Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 108-09, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Paramore v. Delta Air Lines, 129 F.3d 1446, 1449 (11th Cir.1997). The Supreme Court has established that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Bruch, 489 U.S. at 115, 109 S.Ct. 948. Here, the parties agree that the Plan vests discretion in Defendant as the administrator to determine eligibility and interpret the terms and provisions of the Plan. (A.R.404). Accordingly, the arbitrary and capricious standard applies to a review of the administrator’s decision, absent a conflict of interest, whereupon a heightened arbitrary and capricious standard applies. See Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, (11th Cir.2004). Where, as here, the plan administrator acts as the insurer of the plan, the heightened arbitrary and capricious standard applies. Id. However, the fiduciary’s decision must be ‘wrong’ from the perspective of de novo review before the self interest of the fiduciary is considered. A decision is ‘wrong’, if after reviewing the record and plan documents de novo, the court disagrees with the administrator’s interpretation of the plan. See HCA Health Services of Georgia, Inc. v. Employers Health Insurance Co., 240 F.3d 982, 995 (11th Cir.2001); Williams v. Bell-South Telecommunications, Inc., 373 F.3d at 1137-38. If this court does not disagree with the administrator, the inquiry ends. Id. Discussion While the parties place some emphasis on whether and when Plaintiff was actually diagnosed with fibromyalgia, the operative inquiry is whether Plaintiff was disabled" }, { "docid": "14924109", "title": "", "text": "is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. 948. Following this, the Eleventh Circuit, in Buckley v. Metropolitan Life, set forth three standards of review that a court may apply in reviewing a plan administrator’s claims decisions: “(1) de novo where the plan does not grant the administrator discretion; (2) arbitrary and capricious [where] the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where there is a conflict of interests.” 115 F.3d 936, 939 (11th Cir.1997). There is no dispute that Defendant is the claims administrator and the insurer of Plaintiffs policy. Additionally, the plan documents clearly state that NationsBank, and not Defendant, is the plan administrator; however, this fact is not determinative of whether this Court should review Defendant’s denial of Plaintiffs claims de novo. Rather the Court must look at whether either the plan administrator or the plan fiduciary was given express discretionary authority in the plan documents. See Marecek, 49 F.3d 702, 705 n. 1 (11th Cir.1995) (“The distinction between a plan administrator and a plan fiduciary is unimportant because the standard of review, as set forth by the Court in Firestone, ‘applies equally to the decision of fiduciaries and the plan administrator.’ ”). The Court must follow a series of steps to make a specific determination as to which standard of review it should apply. First, it must look at the plan documents to determine whether the claims administrator is given discretion. HCA Health Servs. of Ga. v. Employers Health Ins. Co., 240 F.3d 982, 995 (11th Cir.2001). If the Court finds that the documents grant discretion to the claims administrator, it applies either the arbitrary and capricious standard or the heightened arbi: trary and capricious standard. Id. Next the Court “evaluates the claims administrator’s interpretation of the- plan to determine whether it is wrong,” regardless of whether arbitrary and capricious review or the heightened arbitrary and capricious review applies. See id. at 993" }, { "docid": "22139704", "title": "", "text": "Co., 320 F.3d 1260, 1267 (11th Cir.2003). B. ERISA Review Standard ERISA provides no standard for reviewing decisions of plan administrators or fiduciaries. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Shaw v. Connecticut Gen. Life Ins. Co., 353 F.3d 1276, 1282 (11th Cir.2003); Marecek v. Bell-South Telecomms., Inc., 49 F.3d 702, 705 (11th Cir.1995). But Firestone established three distinct standards for reviewing administrators’ plan decisions: “(1) de novo where the plan does not grant the administrator discretion [i.e., does not exercise discretion in deciding claims;] (2) arbitrary and capricious [where] the plan grants the administrator [such] discretion; and (3) heightened arbitrary and capricious where [the plan grants the administrator such discretion but] ... [he has] ... a conflict of interest.” HCA Health Servs. of Geor gia., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001) (quoting Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir.1997)); Shaw, 353 F.3d. at 1282. Williams contends that, because Bell-South both funded and administered the disability benefits plan, a conflict of interest existed, so the district court erred by not reviewing the denial of benefits using the “heightened” arbitrary and capricious standard. We note that in most cases where .a company .both administers and funds a plan, a conflict of interest arises, thus triggering heightened arbitrary and capricious review. See Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1562 (11th Cir.1990); Yochum v. Barnett Banks, Inc. Severance Pay Plan, 234 F.3d 541, 544 (11th Cir.2000); Levinson v. Reliance Standard Ins. Co., 245 F.3d 1321, 1325-26 (11th Cir.2001) (Where administrator of benefits plan governed by ERISA pays out to participants out of its own assets, a conflict of interest exists between its fiduciary rule and its profit-making role, and accordingly, a heightened arbitrary and capricious standard applies in reviewing administrator’s discretionary denial of benefits under the plan). But here BellSouth — though it retained the role of “plan administrator” — employed Kemper as its “claim administrator.” Kemper processed and decided claims that BellSouth would pay out." }, { "docid": "12823557", "title": "", "text": "Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.1998) (holding that ERISA plaintiff “bears the burden of proving [her] entitlement to contractual benefits”). This burden is the same whether or not the administrator denies a claim initially or decides to discontinue benefits after initially approving them. See Hufford v. Harris Corp., 322 F.Supp.2d 1345, 1360 (M.D.Fla.2004) (noting that claimant “retains the burden of proving continued disability” after benefits are discontinued and that administrator need not “show[] a change in claimant’s condition”). “ERISA provides no standard for reviewing decisions of plan administrators or fiduciaries.” Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, 1134 (11th Cir.2004.) Courts apply one of three standards of review, depending on the terms of the plan and whether a conflict of interest exists with regard to the identities of the insurer and administrator: (1) de novo where the plan does not grant the administrator discretion [ie., does not exercise discretion in deciding claims;] (2) arbitrary and capricious, [where] the plan grants the administrator [such] discretion; and (3) heightened arbitrary and capricious where [the plan grants the administrator such discretion but] ... [he has] ... a conflict of interest. Id. (quoting HCA Health Servs. of Georgia, Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001)). The Policy gave Hartford “full discretion and authority to determine eligibility for benefits and to construe and interpret all terms” of the Policy. (Ex. A. p. 14.) Since Hartford both funded and administered the Policy, the Court will review its decision under a heightened arbitrary and capricious review standard. (Defs’ Stmt of Facts, ¶ 1, 3.) “[T]he distinctions between the heightened arbitrary and capricious, arbitrary and capricious, and de novo standards of review have become difficult to discern over time.” Williams, 373 F.3d at 1137. De novo review affords no deference to the administrator’s decision. Id. The arbitrary and capricious standard is akin to the “abuse of discretion” standard. Id. (citing Shaw v. Connecticut Gen. Life Ins. Co., 353 F.3d 1276, 1284-85 n. 6 (11th Cir.2003)). The heightened arbitrary and capricious standard falls “somewhere between” the" }, { "docid": "12823560", "title": "", "text": "interest, then apply heightened arbitrary and capricious review to the decision to affirm or deny it. 373 F.3d at 1138. In other words, if the Court, applying the de novo standard, concludes that the denial was not “wrong,” the inquiry ends. See id. (concluding that decision to deny benefits was not “wrong” under de novo standard, thereby obviating need to perform heightened arbitrary and capricious review); HCA, 240 F.3d at 993 (“Regardless of whether arbitrary and capricious or heightened arbitrary and capricious review applies, the court evaluates the claim administrator’s interpretation of the plan to determine whether it is ‘wrong.’ ”). See also id. citing (Godfrey v. BellSouth Telecommunications, Inc., 89 F.3d 755, 758 (11th Cir.1996) (“we first conduct a de novo review to decide if the [claims administrator’s] determination was wrong.”); Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1566 n. 12 (11th Cir.1990) (“[i]t is fundamental that the fiduciary’s interpretation first must be ‘wrong’ from the perspective of de novo review before a reviewing court is concerned with the self-interest of the fiduciary.”); Marecek v. BellSouth Telecommunications, Inc., 49 F.3d 702, 705-06 (11th Cir.1995) (court will only search the record for existence of conflict in the event that it disagrees with decision to deny benefits). Pursuant to either the arbitrary and capricious of heightened arbitrary and capricious standard of review, the Court confines it review to the administrative record as it existed at the time the administrator denied the claim for benefits. See Parness v. Met. Life. Ins. Co., 291 F.Supp.2d 1347, 1356 (S.D.Fla.2003) (“Because the Court has concluded that the heightened arbitrary and capricious standard of review is appropriate in this matter, the Court shall limit its review to that evidence which was before Metlife at the time it denied Parness’s claim for benefits.”); Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1550 (11th Cir.1994) (“Application of the arbitrary and capricious standard requires us to look only to the facts known to the administrator at the time the decision was made to deny Lee coverage.”) (citation omitted). III. DISCUSSION The" }, { "docid": "3649208", "title": "", "text": "standard of review. To trigger arbitrary and capricious review, “the plan documents at issue [must] explicitly grant the claims administrator discretion to determine eligibility or construe terms of the plan.” HCA Health Servs. of Georgia, Inc. v. Employers Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001) (“HCA”). Under this standard which parallels the abuse of discretion standard, see id., “the function of the court is to determine whether there was a reasonable basis for the decision based upon the facts as known to the administrator at the time the decision was made.” Jett v. Blue Cross & Blue Shield of Alabama, Inc., 890 F.2d 1137, 1139 (11th Cir.1989); see also Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1450 n. 2 (11th Cir.1997). As explained in Leahy v. Raytheon Co., under the abuse of discretion standard, “in a very real sense, the district court sits more as an appellate tribunal than as a trial court. It does not take evidence, but, rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the plan fiduciary.” 315 F.3d 11, 17-18 (1st Cir.2002). The court applies this standard “to avoid judicial second guessing/intrusion by according the most judicial deference (and thus, the least judicial scrutiny).” Williams, 373 F.3d at 1137. A third standard of review, described as the “heightened arbitrary and capricious standard,” requires “a level of deference (and conversely, scrutiny) somewhere between what is applied under the de novo and ‘regular’ arbitrary and capricious standards.” Id. Application of this standard of review is triggered “where the administrator has discretion but exercises it under a conflict of interest.” Id. For instance, when the claims administrator both funds and administers its disability plan or, stated differently, it pays the ben efits it administers, there exists an inherent conflict of interest between the claims administrator’s fiduciary role and profit-making interest. See Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1568 (11th Cir.1990). “Under the heightened arbitrary and capricious standard of review, the burden shifts to the claims administrator to prove that its interpretation" }, { "docid": "7818731", "title": "", "text": "claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is “de novo wrong” and he was vested with discretion in reviewing claims, then de termine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict of interest, then apply heightened arbitrary and capricious review to the decision to affirm or deny it. Williams v. BellSouth, 373 F.3d 1132, 1137-38 (11th Cir.2004)(footnotes and citations omitted). In plan interpretation cases, when there is a conflict of interest, the court employs a two-step, burden-shifting approach: (1) The claimant shows that the administrator of a discretion-vesting plan is conflicted. (2) The administrator then proves that his plan interpretation was not tainted by self-interest. A wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the administrator at the expense of the claimant. But, if the administrator can demonstrate a routine practice or give other plausible justifications-such as benefitting the interests of other beneficiaries-judicial deference to it may be granted, since [e]ven a conflicted [administrator] should receive deference when [he] demonstrates that [he] is exercising discretion among choices which reasonably may be considered to be in the interests of the participants and beneficiaries. Id. at 1138 (footnotes, quotation marks, and citations omitted). However, even if “the administrator satisfies this burden, the claimant may still be successful if he can show by other measures that the administrator’s decision was arbitrary and capricious.” HCA Health Services of Georgia, Inc. v. Employers Health Ins. Co., 240 F.3d 982, 995 (11th Cir.2001) (citation omitted). If the court finds that the administrator “fails to show that its plan interpretation benefits the class of participants and beneficiaries, the claims administrator’s plan interpretation is not entitled to deference.” Id. TV. Defendant’s Motion for" }, { "docid": "20571157", "title": "", "text": "at 956-57; Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir.1997). “If the court finds that the documents grant the claims administrator discretion, then at a minimum, the court applies arbitrary and capricious review and possibly heightened arbitrary and capricious review” and proceeds to the second step. HCA, 240 F.3d at 993. In step two, regardless of whether arbitrary and capricious review or the heightened form of that standard of review applies, the court reviews de novo the claims administrator’s interpretation of the plan to determine whether it is “wrong.” HCA, 240 F.3d at 993. ‘“Wrong’ is the label used by our precedent to describe the conclusion a court reaches when, after reviewing the plan documents and disputed terms de novo, the court disagrees with the claims administrator’s plan interpretation.” Id. at 993 n. 23. If the court determines that the administrator’s interpretation is right, the inquiry ends, but if it determines that the interpretation is wrong, the court proceeds to step three. See id. at 993-94. In step three, the court decides whether “the claimant has proposed a reasonable interpretation of the plan.” HCA, 240 F.3d at 994 (internal quotation marks omitted). If the court concludes that he has, it continues on to step four. In step four, the court must “determine whether the claims administrator’s wrong interpretation is nonetheless reasonable.” Id. If it is reasonable, then the “interpretation is entitled to deference even though the claimant’s interpretation is also reasonable,” and the court moves to step five. Id. Finally, in step five, the court must consider the self-interest of the administrator. HCA, 240 F.3d at 994. “If no conflict of interest exists, then only arbitrary and capricious review applies and the claims administrator’s wrong but reasonable decision will not be found arbitrary and capricious.” Id. The inquiry ends at that point. Id. If a conflict does exist, then heightened arbitrary and capricious review applies. Id. “[T]he burden shifts to the claims administrator to prove that its interpretation of the plan is not tainted by self-interest.” Id. The claims administrator must show that “its wrong but reasonable interpretation" }, { "docid": "3649209", "title": "", "text": "record compiled before the plan fiduciary.” 315 F.3d 11, 17-18 (1st Cir.2002). The court applies this standard “to avoid judicial second guessing/intrusion by according the most judicial deference (and thus, the least judicial scrutiny).” Williams, 373 F.3d at 1137. A third standard of review, described as the “heightened arbitrary and capricious standard,” requires “a level of deference (and conversely, scrutiny) somewhere between what is applied under the de novo and ‘regular’ arbitrary and capricious standards.” Id. Application of this standard of review is triggered “where the administrator has discretion but exercises it under a conflict of interest.” Id. For instance, when the claims administrator both funds and administers its disability plan or, stated differently, it pays the ben efits it administers, there exists an inherent conflict of interest between the claims administrator’s fiduciary role and profit-making interest. See Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1568 (11th Cir.1990). “Under the heightened arbitrary and capricious standard of review, the burden shifts to the claims administrator to prove that its interpretation of the plan is not tainted by self-interest.” HCA, 240 F.3d at 994; Brown, 898 F.2d at 1563. “The claims administrator satisfies this burden by showing that its wrong but reasonable plan benefits the class of participants and beneficiaries.” Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326 (11th Cir.2001). The scope of review generally is limited to “the facts as known to the administrator at the time the decision was made.” Id. While ERISA places the burden upon Anderson to prove an entitlement to disability benefits under the policy, see Horton, 141 F.3d at 1040, Unum bears the burden of proving that the arbitrary and capricious standard of review applies. See Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2nd Cir.2002); Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 229 (2nd Cir. 1995) (holding that fiduciary bears burden of proof on issue of standard of review “since the party claiming deferential review should prove the predicate that justifies it”). Furthermore, “whether an insurance plan grants discretionary authority to a plan administrator”" } ]

[ { "docid": "7583281", "title": "", "text": "has recently held that evidence obtained as a result of a routine inventory conducted to itemize the property of an arrested person is admissible in evidence, United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795. Here, as in Lipscomb, it was entirely reasonable to take the defendants’ property to police headquarters. The car was demolished and could neither be locked nor left on the street. The only remaining occupant was seriously injured and had to be taken to the hospital. Once the car was taken to headquarters the “officers were under a duty to itemize the property [therein] and store it for safekeeping.” United States v. Lipscomb, supra, at 801. Evidence discovered as a result of this necessary inventory was therefore admissible at the defendants’ trial. United States v. Lipscomb, supra. The defendants’ second contention is that Sawyer and Boyd should have been given separate trials. Their argument in this respect appears to rest solely on the fact that, since this was a conspiracy trial, evidence admissible against one might not be admissible against the other unless the conspiracy was established. We find this insufficient justification to reverse the trial court’s exercise of discretion. This court has often held that if the jury can, with proper instructions, evaluate the evidence against each defendant, then a denial of a motion for severance is not error. Oden v. United States, 5 Cir. 1969, 410 F.2d 103, cert. denied, Lacy v. United States, 396 U.S. 863, 90 S.Ct. 138, 24 L.Ed.2d 116; Leach v. United States, 5 Cir. 1968, 402 F.2d 268, cert. denied, 393 U.S. 1082, 89 S.Ct. 864, 21 L.Ed.2d 775; Peterson v. United States, 5 Cir. 1965, 344 F.2d 419. Here the proper cautionary instructions were given and the evidence indicates no probability of jury confusion or misunderstanding. There was no affirmative showing of prejudice by either defendant. The trial court did not, therefore, abuse its discretion in denying the motion for severance. Oden v. United States, supra. For the foregoing reasons the judgment of the trial court is affirmed. . Defendant Sawyer moved both to suppress the evidence" } ]

[ { "docid": "15412506", "title": "", "text": "216, 88 S. Ct. 1472, 20 L.Ed.2d 538 (1968). At most, the suspicion provided a reason for continuing the inspection at the parking lot. United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L. Ed.2d 331 (1971); United States v. Polk, 433 F.2d 644 (5th Cir. 1970); United States v. Johnson, 413 F.2d 1396 (5th Cir. 1969), aff’d en banc, 431 F.2d 441 (5th Cir. 1970); United States v. Graham, 391 F.2d 439 (6th Cir.), cert. denied, 393 U.S. 941, 89 S.Ct. 307, 21 L. Ed.2d 278 (1968); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967); United States v. Powers, 439 F.2d 373 (4th Cir.), cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971). Had they continued the inspection at the parking lot and ascertained that the CVIN did not correspond to the VIN and the number on the registration certificate, they would have had probable cause to believe that the Cadillac had been stolen. Instead of continuing the inspection, Detective Gebbia directed appellant to furnish the keys, and drove the Cadillac to the police station. While circumstances amounting to less than probable cause may justify the minimal intrusion involved in an on-the-scene inspection of the VIN or CVIN, the greater intrusion involved in impounding or seizing a vehicle cannot be justified without probable cause. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Since Detective Gebbia had no probable cause to believe that the Cadillac had been stolen, the only other basis for taking the Cadillac to the police station would have been to protect it. See United States v. Lipscomb, supra; United States v. Polk, supra; United States v. Cotton, supra; People v. Manzi, 21 A. D.2d 57, 248 N.Y.S.2d 306 (1st Dept. 1964) (Breitel, J.). However, since the Cadillac was parked in the parking lot behind the apartment house in which appellant lived, which was an appropriate place for it to be, and" }, { "docid": "6313101", "title": "", "text": "States v. Mitchell, 458 F.2d 960 (9th Cir. 1972) ; United States v. Pennington, 441 F.2d 249 (5th Cir.), cert, denied, 404 U.S. 854, 92 S. Ct. 97, 30 L.Ed.2d 94 (1971) ; United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971) ; People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S. 2d 945, 272 N.E.2d 464 (1971) ; Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971), cert, denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972) ; State v. Wallen, 185 Neb. 44, 173 N.W.2d 372, cert, denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970) ; State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968) ; State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968) ; Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967) ; St. Clair v. State, 1 Md.App. 605, 323 A.2d 565 (1967). . See, Williams v. United States, 412 F.2d 729 (5tli Cir. 1969) ; Dodge v. Turner, 274 F.Supp. 285 (D.Utah 1967) ; Boulet v. State, 17 Ariz.App. 64, 495 P.2d 504 (1972) ; Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971) (overruling prior California decisions to the contrary) ; Mayfield v. United States, 276 A.2d 123 (D.C.App.1971). For a more extended discussion of the cases in this area see Annot., 48 A.L.R.3d 537 (1973). . Cooper v. California, 386 U.S. 58, 59-60, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) ; Cady v. Dombrowski, supra at 433 of 413 U.S., 93 S.Ct. 2523. . “The adraissability of evidence found as a result of a search under the police regulation is not presented by this case.” 390 U. S. at 236, 88 S.Ct. at 993. (emphasis supplied) . . In United States v. Colbert, 474 F.2d 174 (5th Cir., en banc 1973), Williams was stated to no longer be viable authority in the Fifth Circuit on the issue of standing to challenge a search and seizure. On the issue of inventory searches it has probably been sub silentio overruled by the later cases noted in this opinion." }, { "docid": "9420188", "title": "", "text": "(1966), evidence of a crime accidentally discovered need not be suppressed. The protection of a man’s property is no less a service than that which was being rendered in Vauss. [search of unconscious person for purpose of discovering identification and preparing hospital report]” 277 F.Supp. at pp. 99-100. The District of Columbia Circuit affirmed the conviction. It stated: “The [district] court’s findings and conclusions on this score [the securing of the car] are peculiarly within the scope of Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).” 433 F.2d at p. 534, n. 1. We note that in Fuller the eyeglass case was closed and the officer opened it. Here the sample case was already open. Mitchell urges Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Without considering whether Harris, supra, Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L. Ed.2d 730 (1967), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) have limited Preston, we note that Preston and Chimel are clearly distinguishable. There, the intent of the search was exploratory, i. e., to obtain evidence. Here, there was arguably no search; and, if there was, it was a reasonable effort to safeguard the property of the owner of the vehicle and the interest of the city in protecting itself against false claims. See United States v. Lipscomb, 435 F.2d 795, 800 (5th Cir. 1970), cert. denied 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971), reh. denied 402 U.S. 966, 91 S.Ct. 1635, 29 L.Ed.2d 131 (1971): “We agree that there is nothing in Preston or Chimel that forbids the result we reach here. Both cases concern limits on the attempts of police officers to locate and confiscate incriminating evidence. Chimel in particular was an effort to forestall ‘the increasing legitimation of wide-ranging warrantless searches of lodgings and buildings based on the fortuity of arrest on the premises, which had been ushered in by United" }, { "docid": "2575041", "title": "", "text": "claims of theft. Breaking open the suitcases (the description used by the agent who testified) was an unreasonable and, therefore, unacceptable approach to the problem.” The Supreme Court has not attempted to define generally the conditions in which inventory searches are consistent with the fourth amendment. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). In inquiring into the reasonableness of the Government’s actions in this case, and weighing the privacy rights of the defendants against the Government’s interest in doing what it did, the court followed the approach of the eighth circuit in United States v. Lawson, 487 F.2d 468 (1973), and the California State courts, see Mozzetti v. Superior Court of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971). That approach is somewhat at variance with the tenor of decisions in the fifth circuit which tend to validate “routine” inventory procedures unless shown to be carried out in particularly bad faith. See, e. g., United States v. Kelehar, 470 F.2d 176 (1972); United States v. Lipscomb, 435 F.2d 795 (1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). We agree generally with the approach taken in Lawson and find no reason to overturn the findings below. This is not to dispute the propriety of reasonable inventory procedures designed to safeguard clothing and personal effects; and if in the course of such reasonable good faith efforts an officer stumbles across incriminating evidence, the evidence will not be suppressed. See Cady v. Dombrowski, supra ; Fagundes v. United States, 340 F.2d 673, 675-76 (1st Cir. 1965); cf. Cabbler v. Superintendent, 528 F.2d 1142 (4th Cir. 1975). But just because of its designation as such, an inventory is not immune from the fourth amendment. United States v. Lawson, supra, 471-72. We see an inventory as occupying a middle ground between a criminal investigatory search, which must comply strictly with warrant and probable cause standards, and those actions which fall totally outside the fourth amendment. See, e. g., Harris v. United States, supra; Fagundes v. United States, supra." }, { "docid": "23113386", "title": "", "text": "423 U.S. 854, 96 S.Ct. 101, 46 L.Ed.2d 78 (1975); Theriault v. Pittman, 420 U.S. 989, 95 S.Ct. 1437, 43 L.Ed.2d 680 (1975); Theriault v. Carlson, 353 F.Supp. 1061 (N.D.Ga. 1973), reversed, 495 F.2d 390, 395 (5 Cir. 1974), cert. denied sub nom. Theriault v. Silber, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279 (1974); Theriault v. United States Court of Appeals for the Seventh Circuit, 416 U.S. 980, 94 S.Ct. 2414, 40 L.Ed.2d 777 (1974); Theriault v. Bartels, 415 U.S. 979, 94 S.Ct. 1567, 39 L.Ed.2d 875 (1974); Theriault v. United States, 481 F.2d 1193 (5 Cir. 1973), cert. denied, 414 U.S. 1114, 94 S.Ct. 847, 38 L.Ed.2d 742 (1973); Theriault v. United States, 481 F.2d 1193 (5 Cir. 1973), cert. denied, 414 U.S. 1115, 94 S.Ct. 847, 38 L.Ed.2d 742 (1973); Theriault v. United States, dist. ct. reversed and remanded, 440 F.2d 713 (5 Cir. 1971), dist. ct. aff’d, 474 F.2d 359 (5 Cir. 1973), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973); Theriault v. United States, sentence vacated and case remanded, 434 F.2d 212 (5 Cir. 1970), cert, denied, 404 U.S. 869, 92 S.Ct. 124, 30 L.Ed.2d 113 (1971), aff’d, 467 F.2d 486 (1972), cert. denied, 411 U.S. 984, 93 S.Ct. 2280, 36 L.Ed.2d 961 (1973); Theriault v. Establishment of Religion on Taxpayers’ Money in the Federal Bureau of Prisons, 411 U.S. 946, 93 S.Ct. 1937, 36 L.Ed.2d 418 (1973); Theriault v. Silber, 405 U.S. 1048, 92 S.Ct. 1328, 31 L.Ed.2d 590 (1972); Theriault v. United States, 447 F.2d 1361 (5 Cir. 1971), cert. denied, 404 U.S. 1064, 92 S.Ct. 750, 30 L.Ed.2d 752 (1972); Theriault v. United States Court of Appeals for the Seventh Circuit, 404 U.S. 936, 30 L.Ed.2d 269 (1971); Theriault v. Pittman, 404 U.S. 952, 92 S.Ct. 156, 30 L.Ed.2d 269 (1971); Theriault v. Mississippi, 404 U.S. 818, 92 S.Ct. 156, 30 L.Ed.2d 119 (1971); Theriault v. Harris, 404 U.S. 870, 92 S.Ct. 125, 30 L.Ed.2d 113 (1971), 403 U.S. 923, 91 S.Ct. 2238, 29 L.Ed.2d 702, rehearing denied, 404 U.S. 877, 92 S.Ct. 34, 30 L.Ed.2d 125" }, { "docid": "23144762", "title": "", "text": "course, any search without a warrant places upon the Government the burden to convince the court that it was reasonable under all of the facts and circumstances. In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1969), Mr. Justice White for the Court states: “Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Id. at 387 U.S. 536, 537, 87 S.Ct. 1735. The Supreme Court early recognized the difference in the standard that should be applied to automobiles, as compared to houses and other stationary structures. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). United States v. Roberts, 434 F.2d 1016 (5th Cir. 1970). An automobile may be searched without a warrant in a variety of circumstances. It is now clear that a policeman, entitled to be on the property where the car is located, may search a vehicle to determine the identity of its owner. Kimbrough v. Beto, 412 F.2d 981 (5th Cir. 1969); United States v. Jackson, 429 F.2d 1368 (7th Cir. 1970); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970). It is not unreasonable to search a car which is validly held for use as evidence in a forfeiture proceeding. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Automobiles coming into the lawful custody of the police may be searched without a warrant for the purpose of inventorying the contents and providing for their safekeeping, without having probable cause to believe that evidence of a crime will be discovered. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). A warrantless search of an automobile at a police station after an arrest elsewhere is constitutionally permissible, although the persons under arrest were in custody at the time and there was ample opportunity to obtain a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The facts of this case must be viewed in the" }, { "docid": "6313100", "title": "", "text": "Court is reported at 355 F.Supp. 101 (D.S.D.1973). . The regulation in effect at the time of defendant’s arrest reads as follows: Since the Aberdeen Polibe Department is directly responsible for all personal property seized, impounded and taken under our control, it is necessary for us to take reasonable care to guarantee its safe return to its proper owner. As the Police Department is liable for loss or theft of this personal property it becomes necessary for us to inventory the property in order to protect the Police Department and the City of Aberdeen against any false claims for loss or theft. When the Operator of a vehicle is arrested, his vehicle shall be driven or towed to the Police Department. Those items considered “valuables” shall be removed, inventoried and placed in the property room for safe keeping. This shall include items not attached to the vehicle and are practical in size, weight and quantity to be so removed and stored. . See, United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972) ; United States v. Mitchell, 458 F.2d 960 (9th Cir. 1972) ; United States v. Pennington, 441 F.2d 249 (5th Cir.), cert, denied, 404 U.S. 854, 92 S. Ct. 97, 30 L.Ed.2d 94 (1971) ; United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971) ; People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S. 2d 945, 272 N.E.2d 464 (1971) ; Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971), cert, denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972) ; State v. Wallen, 185 Neb. 44, 173 N.W.2d 372, cert, denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970) ; State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968) ; State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968) ; Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967) ; St. Clair v. State, 1 Md.App. 605, 323 A.2d 565 (1967). . See, Williams v. United States, 412 F.2d 729 (5tli Cir. 1969) ; Dodge v. Turner, 274 F.Supp. 285 (D.Utah 1967) ; Boulet v. State, 17" }, { "docid": "9420184", "title": "", "text": "the government against false claims, the federal courts have upheld such procedures. United States v. Pennington, 441 F.2d 249 (5th Cir. 1971), cert. denied 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); United States v. Robbins, 424 F.2d 57 (6th Cir. 1970), cert. denied 402 U.S. 985, 91 S.Ct. 1674, 29 L.Ed.2d 151 (1971); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). See also United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971); and United States v. Sterling, 321 F.Supp. 1301 (E.D.La.1971). Cf. Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967), habeas corpus granted sub nom. Heffley v. Hocker, 420 F.2d 881 (9th Cir. 1969), vacated and remanded, 399 U.S. 521, 90 S.Ct. 2236, 26 L.Ed.2d 780 (1970), habeas corpus denied, 429 F.2d 1321 (9th Cir. 1970); Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971); People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971). See also: Comment, The Inventory Search of an Impounded Vehicle, 48 Chi.-Kent L.Rev. 48 (1971). But cf. Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971). Several of these cases go beyond what we are asked to do. We are concerned only with protection of valuable property in plain view in a lawfully impounded automobile — that is, with the reasonable action of the patrolman in picking up the watches, placing them in the already open sample case, and carrying the case and its contents back to the station house to be inventoried and held in safekeeping. The patrolman did not open a closed briefcase or the trunk of the car. While it appears that he did remove watches from the glove compartment, no evidence was found there. We do not reach the question of whether any such evidence would have been admissible. The District of Columbia Circuit has recently considered the issue before us. United States v. Fuller, 277 F.Supp. 97 (D.D.C.1967); conviction affirmed, sentence" }, { "docid": "2388243", "title": "", "text": "arrest. . The questions by the defense lawyer were as follows: Q. And did you then — did Mr. Boarman then question him: A. First of all. Q. Well, just did he or didn’t he, first of all? A. In a sense, yes, sir. Q. Were you questioning Mr. McDevitt at the time? A. I believe I asked one question of him. Q. Were you present at all times while Mr. Boarman was talking to Mr. McDevitt? A. Not at all times. Later, on cross-examination by the prosecutor, Officer Olson testified that as he and the two district attorneys were walking to the truck to inventory it, Officer Boarman told them that McDevitt had just told him that there was marijuana in the truck. Q. Now as you went to the vehicle, what happened? A. Agent Boarman came out the front doors of the state police office and he advised the district attorney and myself that Mr. McDevitt had just informed him there was marijuana in the vehicle. Q. Okay. Were you already unlocking the vehicle at that time? A. We were approaching the vehicle at that time. . Cf. United States v. Ducker, 491 F.2d 1190 (5th Cir. 1974); United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971); United States v. Pennington, 441 F.2d 249 (5th Cir. 1971); United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971). Several of the above Fifth Circuit cases rely on Cady v. Dombrow-ski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) and Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) for these rulings. In Harris the police found a registration certificate in an impounded auto. The policeman was attempting to roll up the window so as to protect the auto when he discovered a registration certificate in plain view. A po lice regulation demanded that impounded vehicles be inventoried. The Court upheld the admissibility of the registration certificate. The Court, however, stated that: The admissibility of evidence found as a result of a" }, { "docid": "23163362", "title": "", "text": "sub nom. Greenberg v. United States, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 453 (1972); Noriega v. United States, 437 F.2d 435 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 648 (1971); Palos v. United States, 416 F.2d 438, 440 (5th Cir. 1969), cert. denied, 397 U.S. 980, 90 S.Ct. 1107, 25 L.Ed.2d 391 (1970). . United States v. Barber, 442 F.2d at 526-27. . United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67, 79 (1973). . Id. at 5-7, 93 S.Ct. at 767-768, 35 L.Ed.2d at 74-75. . See United States v. Gattie, 511 F.2d 608, 610 n.3 (5th Cir. 1975). . 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). . 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970). . Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (per curiam). . Chambers v. Maroney, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428. . Id. But see United States v. Valen, 479 F.2d 467, 472 (3d Cir. 1973) (Adams, J., concurring). Cf. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). . 399 U.S. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428. . Id. See United States v. Valen, 479 F.2d at 470-71; United States v. Menke, 468 F.2d 20, 22-23 (3d Cir. 1972). . Compare Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (Plurality opinion of Blackmun, X); Haefeli v. Chernoff, 526 F.2d 1314 (1st Cir. 1975); United States v. Moody, 485 F.2d 531, 535-36 (3d Cir. 1973). . 403 U.S. at 460, 91 S.Ct. at 2035, 29 L.Ed.2d at 579. . At oral argument, but not in their briefs, defendants made the further contention that the DEA agents should not have opened the paper bag that was found in the car. Instead, defendants claim, they should have seized the bag and obtained a search warrant to open it. Here the contents of the bag were the very object of" }, { "docid": "17499157", "title": "", "text": "an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it’ . . the reason for and nature of the custody may constitutionally justify the search.” 386 U.S. 58, 61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730. Cady limited the holding of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964): “ . .it stands only for the proposition that the search challenged there could not be justified as one incident to an arrest.” 413 U.S. 433, 444, 93 S.Ct. 2523, 2529, 37 L.Ed.2d 706. . The following cases have been found reasonable impoundment and inventory searches, either or both: United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972); Barker v. Johnson, 484 F.2d 941 (6th Cir. 1973); United States v. Mitchell, 458 F.2d 960 (9th Cir. 1972); United States v. Pennington, 441 F.2d 249 (5th Cir. 1971); United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970); Kimbrough v. Beto, 412 F.2d 981 (5th Cir. 1969); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967). Contra: United States v. Lawson, 487 F.2d 468 (8th Cir. 1973)." }, { "docid": "9420183", "title": "", "text": "issue of whether this police conduct was a search. It is enough to hold that under the facts of this case the action of the patrolman in safeguarding valuable property in plain sight in a lawfully impounded car was reasonable, and hence not prohibited by the Fourth Amend ment. That amendment, of course, does not prohibit all searches; it forbids only unreasonable searches. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); United States v. Novick, 450 F.2d 1111 (9th Cir. 1971). We note that police regulations, such as the one involved in Harris, requiring a thorough search and inventory of the contents of impounded cars are frequently standard procedure. Such inventories are gaining judicial acceptance within what Judge Roney has called the “maturing law of search and seizure.” United States v. Edwards, 441 F.2d 749, 755 (5th Cir. 1971). Although inventories of personal property may extend beyond those items in plain view to a search of glove compartment and trunk, for the purpose of safeguarding private property and protecting the government against false claims, the federal courts have upheld such procedures. United States v. Pennington, 441 F.2d 249 (5th Cir. 1971), cert. denied 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); United States v. Robbins, 424 F.2d 57 (6th Cir. 1970), cert. denied 402 U.S. 985, 91 S.Ct. 1674, 29 L.Ed.2d 151 (1971); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970), cert. denied 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). See also United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971); and United States v. Sterling, 321 F.Supp. 1301 (E.D.La.1971). Cf. Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967), habeas corpus granted sub nom. Heffley v. Hocker, 420 F.2d 881 (9th Cir. 1969), vacated and remanded, 399 U.S. 521, 90 S.Ct. 2236, 26 L.Ed.2d 780 (1970), habeas corpus denied, 429 F.2d 1321 (9th Cir. 1970); Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971); People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945," }, { "docid": "9368793", "title": "", "text": "and to safeguard the police or other officers from claims of lost possessions. The Supreme Court and this Court have upheld inventory searches where it is clear that the procedure used is a valid inventory and is not merely a pretext for a search, whether or not there is some suspicion that contraband or other evidence may be found. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); United States v. Grill, 5 Cir., 1973, 484 F.2d 990; United States v. Kelehar, 5 Cir., 1972, 470 F.2d 176, 177-178; United States v. Edwards, 5 Cir., 1971, 441 F.2d 749, 754; United States v. Pennington, 5 Cir., 1971, 441 F.2d 249, 251-252, cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94; United States v. Boyd, 5 Cir., 1971, 436 F.2d 1203, 1205; United States v. Lipscomb, 5 Cir., 1970, 435 F.2d 795, 799-801, cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331. Affirmed." }, { "docid": "2595332", "title": "", "text": "Bridge. United States v. Johnson, 456 F.2d 295 (5th Cir. 1972). Valid. International Bridge, Laredo. United States v. Salinas, 439 F.2d 376 (5th Cir. 1971). Valid. 4 blocks from border. Laredo. United States v. Johnson, 439 F.2d 885 (5th Cir.), cert. denied, 404 U.S. 880, 92 S.Ct. 213, 30 L.Ed.2d 161 (1971). Valid. 5 mi. N. of Gateway International Bridge. United States v. Poindexter, 429 F.2d 510 (5th Cir. 1970). Valid. A few mi. from the border. United States v. Briones, 423 F.2d 742 (5th Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970). Valid. Apparently at the border near Laredo. Willis v. United States, 370 F.2d 604 (5th Cir. 1966). Valid. 6 mi. from border. Valadez v. United States, 358 F.2d 721 (5th Cir. 1966). Valid. 5 blocks from Mex. border. Eagle Pass, Texas. Barrera v. United States, 276 F.2d 654 (5th Cir. 1960). Valid. At border. Juarez International Bridge. King v. United States, 258 F.2d 754 (5th Cir. 1958), cert. denied, 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639 (1959). Valid. Apparently at the border. F. Surveillance United States v. Olivares, 496 F.2d 657 (5th Cir. 1974). Invalid. Near Fabens. United States v. Bursey, 491 F.2d 531 (5th Cir. 1974). Invalid. Refugio. United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973). Valid. Brownsville. United States v. Martinez, 481 F.2d 214 (5th Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 489 (1974). Valid. San Antonio. United States v. Garcia, 452 F.2d 419 (5th Cir. 1971). Valid. Harlingen. United States v. Reagor, 441 F.2d 252 (5th Cir. 1971). Valid. Marfa. United States v. Warner, 441 F.2d 821 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Valid. El Paso. Morales v. United States, 378 F.2d 187 (5th Cir. 1967). Valid. Laredo. Thomas v. United States, 372 F.2d 252 (5th Cir. 1967). Valid. El Paso. G. Border Searches on Basis of Tip United States v. Bowman, 502 F.2d 1215 (5th Cir. 1974). Valid. Laredo. United States v. Valdez, 456 F.2d 1140 (5th Cir. 1972). Valid. Brownsville." }, { "docid": "23163361", "title": "", "text": "(U.S. Feb. 23, 1976) (No. 75-212). . 477 F.2d 999, 1003 (3d Cir. 1973), aff’d, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). . 442 F.2d 517, 526-28 (3d Cir. 1971). . See United States v. Valdes, 417 F.2d 335 (2d Cir. 1969), cert. denied, 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970). . See United States v. Romano, 482 F.2d 1183, 1194 (5th Cir. 1973), cert. denied sub nom. Yassen v. United States, 414 U.S. 1129, 94 S.Ct. 293, 38 L.Ed.2d 216 (1974); United States v. Barrone-Iglar, 468 F.2d 419, 421 (2d Cir. 1972), cert. denied sub nom. Pineda v. United States, 409 U.S. 981, 93 S.Ct. 315, 34 L.Ed.2d 244 (1972) and sub nom. Gernie v. United States, 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973) ; United States v. Cox, 449 F.2d 679, 690 (10th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972). . See, e. g., United States v. Alper, 449 F.2d 1223, 1229 (3d Cir. 1971), cert. denied sub nom. Greenberg v. United States, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 453 (1972); Noriega v. United States, 437 F.2d 435 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 648 (1971); Palos v. United States, 416 F.2d 438, 440 (5th Cir. 1969), cert. denied, 397 U.S. 980, 90 S.Ct. 1107, 25 L.Ed.2d 391 (1970). . United States v. Barber, 442 F.2d at 526-27. . United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67, 79 (1973). . Id. at 5-7, 93 S.Ct. at 767-768, 35 L.Ed.2d at 74-75. . See United States v. Gattie, 511 F.2d 608, 610 n.3 (5th Cir. 1975). . 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). . 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970). . Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (per curiam). . Chambers v. Maroney, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428. . Id. But see United" }, { "docid": "2388244", "title": "", "text": "vehicle at that time? A. We were approaching the vehicle at that time. . Cf. United States v. Ducker, 491 F.2d 1190 (5th Cir. 1974); United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971); United States v. Pennington, 441 F.2d 249 (5th Cir. 1971); United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971). Several of the above Fifth Circuit cases rely on Cady v. Dombrow-ski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) and Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) for these rulings. In Harris the police found a registration certificate in an impounded auto. The policeman was attempting to roll up the window so as to protect the auto when he discovered a registration certificate in plain view. A po lice regulation demanded that impounded vehicles be inventoried. The Court upheld the admissibility of the registration certificate. The Court, however, stated that: The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Harris v. United States, supra, at 236, 88 S.Ct. at 993. . It is difficult to understand why the officers would proceed without seeking a warrant in these complex circumstances." }, { "docid": "2579212", "title": "", "text": "the Corral Bar-B-Que to remove the car from his premises, not only for his convenience but to protect the defendant’s automobile. Before having the car towed from the scene and properly stored, the police directive required that its contents be inventoried. The search was within the bounds of standard inventory procedure. The judgment is therefore Affirmed. . “§ 472. Uttering counterfeit obligations or securities “Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both.” . See Cuozzo v. United States, 5 Cir. 1963, 325 F.2d 274; Davida v. United States, 10 Cir. 1970, 422 F.2d 528; United States v. Ayers, 2 Cir. 1970, 426 F.2d 524. . See Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795, 800, 801; United States v. Pennington, 5 Cir. 1971, 441 F.2d 249, 252; United States v. Edwards, 5 Cir. 1971, 441 F.2d 749, 755." }, { "docid": "18363143", "title": "", "text": "g., Cady v. Dombrowski, 413 U.S. 433, 439-440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973); United States v. Edwards,-U.S.-, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), it is clear that the Amendment does not speak in absolute terms, Terry v. Ohio, supra, 392 U.S. at 9, 88 S.Ct. at 1873; Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960); United States v. Ragsdale, 5 Cir., 1972, 470 F.2d 24, 27; United States v. Lipscomb, 5 Cir., 1970, 435 F. 2d 795, 800, cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). The courts have long shown a willingness to examine and balance the two basic values at stake in the area of search and seizure: the practical demands of effective criminal investigation and law enforcement; and the interest of citizens in freedom from rash interferences with their privacy. See, e. g., United States v. United States Dist. Ct., E.D. of Mich., S.D., 407 U.S. 297, 314-315, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752 (1972); 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." }, { "docid": "23113387", "title": "", "text": "vacated and case remanded, 434 F.2d 212 (5 Cir. 1970), cert, denied, 404 U.S. 869, 92 S.Ct. 124, 30 L.Ed.2d 113 (1971), aff’d, 467 F.2d 486 (1972), cert. denied, 411 U.S. 984, 93 S.Ct. 2280, 36 L.Ed.2d 961 (1973); Theriault v. Establishment of Religion on Taxpayers’ Money in the Federal Bureau of Prisons, 411 U.S. 946, 93 S.Ct. 1937, 36 L.Ed.2d 418 (1973); Theriault v. Silber, 405 U.S. 1048, 92 S.Ct. 1328, 31 L.Ed.2d 590 (1972); Theriault v. United States, 447 F.2d 1361 (5 Cir. 1971), cert. denied, 404 U.S. 1064, 92 S.Ct. 750, 30 L.Ed.2d 752 (1972); Theriault v. United States Court of Appeals for the Seventh Circuit, 404 U.S. 936, 30 L.Ed.2d 269 (1971); Theriault v. Pittman, 404 U.S. 952, 92 S.Ct. 156, 30 L.Ed.2d 269 (1971); Theriault v. Mississippi, 404 U.S. 818, 92 S.Ct. 156, 30 L.Ed.2d 119 (1971); Theriault v. Harris, 404 U.S. 870, 92 S.Ct. 125, 30 L.Ed.2d 113 (1971), 403 U.S. 923, 91 S.Ct. 2238, 29 L.Ed.2d 702, rehearing denied, 404 U.S. 877, 92 S.Ct. 34, 30 L.Ed.2d 125 (1971); Theriault v. Blackwell, 437 F.2d 76 (5 Cir. 1971), cert. denied, 402 U.S. 953, 91 S.Ct. 1637, 29 L.Ed.2d 122 (1971); Theriault v. Daggett, 401 U.S. 983, 91 S.Ct. 1205, 28 L.Ed.2d 335 (1971); Theriault v. United States, 401 U.S. 983, 91 S.Ct. 1205, 28 L.Ed.2d 335 (1971); Theriault v. United States, 409 F.2d 1313 (5 Cir. 1969), cert. denied, 396 U.S. 933, 90 S.Ct. 274, 24 L.Ed.2d 231 (1969); Theriault v. United States, 402 F.2d 792 (5 Cir. 1968), cert. denied, 395 U.S. 965, 89 S.Ct. 2110, 23 L.Ed.2d 751 (1969), rehearing denied, 396 U.S. 870, 90 S.Ct. 42, 24 L.Ed.2d 128 (1969); Theriault v. Peek, 406 F.2d 117 (5 Cir. 1968), cert. denied, 394 U.S. 1021, 89 S.Ct. 1644, 23 L.Ed.2d 47 (1969); Theriault v. United States, 268 F.Supp. 314 (W.D.Ark.1967), aff'd, 401 F.2d 79 (8 Cir. 1968), cert. denied, 393 U.S. 1100, 21 L.Ed.2d 792 (1969), rehearing denied, 394 U.S. 939, 89 S.Ct. 1201, 22 L.Ed.2d 474 (1969); Theriault v. Mississippi, 433 F.2d 990 (5 Cir. 1970); Theriault v. Mississippi, 390" }, { "docid": "9368792", "title": "", "text": "test is whether, taking the view most favorable to the Government, a reasonably minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Jeffords, 5 Cir., 1974, 491 F.2d 90; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353; Sanders v. United States, 5 Cir., 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir., 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir. 1967, 374 F.2d 878, 881. As this was clearly a jury question, denial of Dueker’s motion for judgment of acquittal was not error. The evidence gathered in the two inventory searches of Conover’s car was properly admitted at trial. Inventory searches have two purposes: to protect the vehicle and the property in it, and to safeguard the police or other officers from claims of lost possessions. The Supreme Court and this Court have upheld inventory searches where it is clear that the procedure used is a valid inventory and is not merely a pretext for a search, whether or not there is some suspicion that contraband or other evidence may be found. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); United States v. Grill, 5 Cir., 1973, 484 F.2d 990; United States v. Kelehar, 5 Cir., 1972, 470 F.2d 176, 177-178; United States v. Edwards, 5 Cir., 1971, 441 F.2d 749, 754; United States v. Pennington, 5 Cir., 1971, 441 F.2d 249, 251-252, cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94; United States v. Boyd, 5 Cir., 1971, 436 F.2d 1203, 1205; United States v. Lipscomb, 5 Cir., 1970, 435 F.2d 795, 799-801, cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331." } ]

[ { "docid": "22384738", "title": "", "text": "PER CURIAM: Carolina Arrieta, a native and citizen of the Philippines, petitions pro se for review of the decision of the Board of Immigration Appeals (“BIA”), dismissing her appeal from the Immigration Judge’s (“IJ”) denial of her motion to reopen deportation proceedings. The IJ entered an order of deportation in absentia when Arrieta failed to appear at the scheduled deportation hearing. We have jurisdiction pursuant to 8 U.S.C. § 1105a, and we grant the petition for review. Arrieta contends that she failed to appear for her deportation hearing because she never received notice of the deportation hearing as required by section 242B of the Immigration and Nationality Act (“the Act” or “INA”), 8 U.S.C. § 1252b(a)(2). As the BIA indicated in its decision, the IJ ordered Ar-rieta deported after an in absentia hearing because notice of the deportation hearing was sent to Arrieta by certified mail to her last known address. The hearing notice was returned to the Office of the Immigration Judge with an indication that delivery was “attempted.” The BIA concluded that Arrie-ta failed to report a change of address to the immigration court, and that the hearing notice sent by certified mail to her last known address was sufficient to establish that she received written notice of the deportation hearing as required by section 242B of the INA. Arrieta contends, however, that although she had changed her residence, she continued to receive mail at the address she had provided. I We review de novo the BIA’s “determination of purely legal questions regarding the requirements of the Immigration and Nationality Act.” Tedeeva v. INS, 88 F.3d 826, 827 (9th Cir.1996); citing Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). We wifi defer to the BIA’s interpretation of the Act when appropriate under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Tedeeva, 88 F.3d at 827. The denial of a motion to reopen is subject to an abuse of discretion standard of review. Hernandez-Vivas v. INS, 23 F.3d 1557, 1561 (9th Cir.1994). Section 242B of the Act" } ]

[ { "docid": "22244800", "title": "", "text": "and therefore did not exhaust his administrative remedies and preserve the issue for our review. To the contrary, we note that Wu raised his change-in-law argument before both the BIA and IJ. In his brief in support of his appeal to the BIA of the denial of his motion to reopen, Wu expressly stated that after the IJ’s decision ordering him deported in absentia, the law had been amended to allow an alien whose spouse was forcibly sterilized or compelled to have an abortion to establish persecution on that basis and therefore qualify for asylum. Petitioner repeated this argument in his motion to reopen and reconsider the BIA’s initial dismissal of his appeal for untimeliness, and he repeated it again in his September 23, 1999 motion to reconsider. We therefore conclude that Wu exhausted his administrative remedies. C. Motion to Rescind The requirements of former 8 U.S.C. § 1252b (1994) (repealed, effective 1997) govern Wu’s motion to rescind Judge Videla’s deportation order. Proper notice under that statute includes “written notice ... given in person to the alien (or, if personal service is not practicable, written notice ... given by certified mail to the alien or to the alien’s counsel of record, if any).” § 1252b(a)(2)(A) (repealed, effective 1997). Personal notice may not be practicable when an alien does not appear physically before an IJ, see In re Grijalva, 21 I & N Dec. 27, 35 (BIA 1995), and therefore service by certified mail was a proper method of notice in this case. Mailing notice to a petitioner’s last known address satisfies the § 1252b(a)(2)(A) notice requirement, even if the notice is returned as unclaimed, see Fuentes-Argueta v. INS, 101 F.3d 867, 871-72 (2d Cir.1996), as does mailing the notice to the applicant’s counsel of record, § 1252b(a)(2)(A); Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir.2003). The immigration court sent notice of Wu’s October 20, 1995 hearing to his last known address by certified mail, which was returned because Wu’s attorney provided an incorrect address for petitioner. There is no evidence that delivery was improper or that nondelivery was not" }, { "docid": "22932235", "title": "", "text": "in the United States. The BIA remanded for consideration of the other aspects of Petitioner’s application for suspension of deportation. Later that month, the Immigration Court sent a hearing notice by certified mail to Petitioner’s old address. The notice was returned to the court “unclaimed.” When Petitioner failed to appear for the scheduled hearing, the IJ ordered her deported in absentia and sent notice of the deportation order to Petitioner’s old address. Petitioner did not receive the notice. The INS later sent a notice to the same address telling Petitioner when to report for deportation. According to Petitioner, a former neighbor gave her this second notice when she was visiting her old neighborhood. Petitioner filed a motion to rescind the deportation order and to reopen her case. The INS opposed her motion, arguing that she did not establish that exceptional circumstances or ineffective service of the hearing notice caused her failure to appear. On December 20, 2001, the IJ denied Petitioner’s motion to reopen. The BIA affirmed without opinion, and Petitioner timely appealed to this court. STANDARD OF REVIEW Because the BIA affirmed without opinion, this court directly reviews the immigration judge’s decision as though it were the decision of the BIA. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003). This court reviews denial of a motion to reopen for abuse of discretion. Varela v. INS, 204 F.3d 1237, 1239 (9th Cir.2000). An immigration judge abuses his discretion when he acts “arbitrarily, irrationally, or contrary to law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). DISCUSSION The IJ should have recognized that exceptional circumstances justify granting Petitioner’s motion to reopen. In this unusual case, denial of Petitioner’s motion was arbitrary and irrational. Petitioner’s order to show cause was issued before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) became effective. Therefore, pre-IIRIRA rules regarding motions to reopen apply here. Under § 242B(3) of the Immigration and Nationality Act, the court should grant a motion to reopen an in absentia order where “exceptional circumstances” exist or where the alien was not afforded statutorily required notice. The pre-IIRIRA" }, { "docid": "4308651", "title": "", "text": "set forth in 8 U.S.C. § 1252b(c)(3), “an [in absentia deportation] order may be rescinded ... upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice.” But properly mailing the hearing notice according to the statute— i.e., by sending the notice to the last address provided by the alien either by certified mail (required by § 1252b) or by regular mail (allowed by the current statute)— creates a presumption that notice was received by the alien. See Ba v. Holder, 561 F.3d 604, 607 (6th Cir.2009). To demonstrate that notice was not received under § 1252b(c)(3)(B) — the standard for reopening — an alien must rebut the presumption of receipt arising from the proper mailing of the hearing notice. Stewart v. Holder, 362 Fed.Appx. 518, 521-23 (6th Cir.2010). Notice sent by certified mail creates a strong presumption of receipt. Id. at 521. This strong presumption was first articulated by the BIA in Grijalva, 21 I. & N. Dec. at 37. The Immigration Court in Grijalva sent notice of a deportation hearing by certified mail as required by 8 U.S.C. § 1252b(a)(2). When the Immigration Court received the certified-mail return receipt, the receipt indicated that the mail was unclaimed despite several attempts to deliver the mail to the respondent. Because the respondent failed to appear at the hearing, the IJ held the hearing in absentia and ordered that the respondent be deported. The respondent then filed a motion to reopen, claiming that he never received the hearing notice. His motion was denied by the IJ, who found that “the respondent was properly notified of the hearing ... because the notice, though unclaimed, was sent to him by certified mail [at] his last known address.” Id. at 29. On appeal, the BIA concluded “that the Immigration Judge properly denied the motion to reopen because the respondent failed to demonstrate that he did not receive notice of the deportation proceeding.” Id. at 36. The BIA also found that “where service of a notice of a deportation proceeding is sent by certified mail through" }, { "docid": "4308648", "title": "", "text": "consistency, we will continue to use the word deportation when discussing both the past and present statutes. Although § 1252b was repealed by IIRIRA, this section continues to govern “an alien who is in ... deportation proceedings as of [IIRIRA’s] effective date,” which was April 1, 1997. See IIRIRA §§ 308(b)(6), 309(a), (c)(1). Sanchez’s deportation proceedings began on March 8, 1997 when the INS filed the OSC pertaining to Sanchez with the Immigration Court. See 8 C.F.R. § 1003.14(a). Now-repealed § 1252b therefore governs this appeal. C. Discussion The BIA denied Sanchez’s motion to reopen on the grounds that (1) he received proper notice under 8 U.S.C. § 1252b(c)(3)(B), and (2) his motion was untimely. On appeal, Sanchez challenges both of these grounds. We analyze each in turn below. 1. Denial of motion to reopen — the notice issue The first issue in this case is whether the BIA abused its discretion when it denied Sanchez’s motion to reopen deportation proceedings on the grounds that Sanchez had received proper notice within the meaning of 8 U.S.C. § 1252b(c)(3)(B). An alien who fails to attend his deportation hearing after the government has provided proper written notice of the time and place of the hearing is subject to being deported in absentia if the government proves by clear, unequivocal, and convincing evidence that he is deportable. 8 U.S.C. § 1252b(c)(1). (Sanchez challenges the propriety of the notice, but does not question the propriety of the IJ entering the in absentia deportation order under 8 U.S.C. § 1252b(c)(1).) With exceptions not relevant here, a hearing notice is sufficient if sent by certified mail to the most recent address provided by the alien. 8 U.S.C. § 1252b(a)(2), (c)(1). There is no requirement that the alien actually receive the notice before an Immigration Court can order the alien deported in absentia. Arrieta v. INS, 117 F.3d 429, 431 (9th Cir.1997); In re Grijalva, 21 I. & N. Dec. 27, 33-34 (BIA 1995). The successor statutes to § 1252b — which are materially the same in terms of entering in absentia deportation orders (compare 8 U.S.C." }, { "docid": "22336699", "title": "", "text": "16, 1998, a majority of the BIA, with four members dissenting and two members not participating, denied the motion. The BIA held that Anin was time-barred under INA section 242B(c)(3)(A), 8 U.S.C. § 1252b(c)(3)(A) (1994), from advocating an “exceptional circumstance” exception to a denial of a motion to reopen a deportation order. The court ruled that the 180 day filing deadline was unambiguous and that even an ineffective assistance of counsel claim did not justify a statutory exemption. On August 10,1998, Anin filed a petition to this Court for review of this decision. II. This Court reviews the BIA’s denial of Anin’s motion to reopen his deportation order for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). In this particular area, the BIA’s discretion is quite “ ‘broad.’ ” Id. (quoting INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985)). An immigration judge may conduct a scheduled deportation hearing in absentia if an alien fails to appear at the appointed time. However, a deportation order entered in absentia may be rescinded if a petitioner proves that his failure to appear resulted from exceptional circumstances or a lack of proper notice. Under this statutory framework, we evaluate Anin’s petition to reopen his deportation proceedings. The INA’s plain language clearly allows the INS to fulfill its notice requirement in deportation proceedings by notifying an alien’s attorney through certified mail. Anin concedes that his attorney of record at the time received notice of the February deportation hearing by certified mail in accordance with this provision of the INA. Furthermore, no statutory provision requires an alien to receive actual notice of a deportation proceeding. Indeed, the Code of Federal Regulations instructs that notice be provided to the attorney of record rather than the alien. The Federal Rules of Civil Procedure also favor notice of counsel of record rather than actual notice of the client. See Fed.R.Civ.P. 5(b) (stating that “whenever service under these rules is required or permitted to be made upon a party represented by an attorney the" }, { "docid": "22384742", "title": "", "text": "the deportation hearing was sent to Arrieta’s last known address in San Diego, and, as noted above, returned “attempted.” The IJ ordered Arrieta deported in absentia, and later denied her motion to reopen on the basis that she had changed her address without notifying the INS. Arrieta argued before the BIA, as here, that she did not change her mailing address, merely her residence. Arrieta stated she continued to receive mail from the INS and others at her brother’s San Diego address, including the IJ’s deportation order and the order denying her motion to reopen. In support, Arrieta proffered her letter and a letter from her brother stating that the certified mail notice was never delivered to the San Diego address. Following Grijalva, the BIA applied the presumption of effective delivery and concluded that the INS had established that the certified mail notice sent to Arrieta (but not received by anyone) nonetheless established clear, unequivocal and convincing evidence of the attempt to provide sufficient notice to Arrieta. The BIA further determined that Arrieta did not overcome this presumption through her defense of nondelivery because she failed to provide substantial evidence “such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence” demonstrating improper delivery that was not her fault. Id. Finally, the BIA observed that it also considered that Arrieta was at fault for not receiving the hearing notice because she had changed her address without informing Immigration authorities. II The essential question before us is whether when delivery is attempted, but not made, at the alien’s correct address it meets the requirement of effective service under the Act. We conclude that the BIA’s ruling in Grijalva is correct that notice by certified mail sent to an alien’s last known address can be sufficient under the Act, even if no one signed for it. See 8 U.S.C. § 1252b(c)(l). If a responsible person refuses to sign for the certified mail or if the alien has changed address without notice, the presumption of proper delivery in Grijalva is a reasonable construction of the notice requirement of the" }, { "docid": "2573828", "title": "", "text": "notice was so provided and that the alien is removable (as defined in subsection (e)(2) of this section). 8 U.S.C. § 1229a(b)(5)(A). If an alien is ordered removed after an in absentia hearing, the alien may file a Motion to Reopen if the alien demonstrates that the alien failed to appear because of “exceptional circumstances” or for lack of notice: Such an order may be rescinded only— (i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1) of this section), or (ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien. Id. at § 1229a(b)(5)(C). C.Analysis On appeal, Ghounem argues that the IJ abused his discretion by applying the evidentiary requirements in Matter of Grijalva, 21 I & N Dec. 27(BIA), 1995 WL 314388, in denying Ghounem’s Motion to Reopen. He argues that while a strong presumption of effective delivery was appropriate under the old statute that required service by certified mail, the fact that the new statute allows notice to be sent by regular mail requires us to apply a weaker presumption of delivery and lesser evidentiary requirements to rebut that presumption. We agree. In Grijalva, the respondent was charged with deportability, and the Office of the Immigration Judge sent notice of a removal hearing by certified mail, return receipt requested, pursuant to 8 U.S.C. § 1252b. Grijalva, 21 I & N Dec. at 28. The Office of the Immigration Judge received the certified mail return receipt, which indicated that the mail was unclaimed despite multiple attempts to deliver the mail to the respondent. Id. at 29. The respondent failed to appear at the hearing, the hearing was held in absentia, and the" }, { "docid": "2573829", "title": "", "text": "argues that the IJ abused his discretion by applying the evidentiary requirements in Matter of Grijalva, 21 I & N Dec. 27(BIA), 1995 WL 314388, in denying Ghounem’s Motion to Reopen. He argues that while a strong presumption of effective delivery was appropriate under the old statute that required service by certified mail, the fact that the new statute allows notice to be sent by regular mail requires us to apply a weaker presumption of delivery and lesser evidentiary requirements to rebut that presumption. We agree. In Grijalva, the respondent was charged with deportability, and the Office of the Immigration Judge sent notice of a removal hearing by certified mail, return receipt requested, pursuant to 8 U.S.C. § 1252b. Grijalva, 21 I & N Dec. at 28. The Office of the Immigration Judge received the certified mail return receipt, which indicated that the mail was unclaimed despite multiple attempts to deliver the mail to the respondent. Id. at 29. The respondent failed to appear at the hearing, the hearing was held in absentia, and the IJ ordered the respondent be deported. Id. The respondent filed a Motion to Reopen and claimed that he had not received notice of the hearing. Id. The IJ denied the Motion to Reopen, finding “that the respondent was properly notified of the hearing in question because the notice, though unclaimed, was sent to him by certified mail to his last known address.” Id. On appeal, the BIA found “that the Immigration Judge properly denied the motion to reopen because the respondent failed to demonstrate that he did not receive notice of the deportation proceeding.” Id. at 36. The BIA found further “that in cases where service of a notice of a deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises.” Id. at 37. To combat the presumption of effective service, the BIA found the respondent was required to “present substantial and probative evidence such as documentary evidence from the Postal Service, third" }, { "docid": "22244801", "title": "", "text": "the alien (or, if personal service is not practicable, written notice ... given by certified mail to the alien or to the alien’s counsel of record, if any).” § 1252b(a)(2)(A) (repealed, effective 1997). Personal notice may not be practicable when an alien does not appear physically before an IJ, see In re Grijalva, 21 I & N Dec. 27, 35 (BIA 1995), and therefore service by certified mail was a proper method of notice in this case. Mailing notice to a petitioner’s last known address satisfies the § 1252b(a)(2)(A) notice requirement, even if the notice is returned as unclaimed, see Fuentes-Argueta v. INS, 101 F.3d 867, 871-72 (2d Cir.1996), as does mailing the notice to the applicant’s counsel of record, § 1252b(a)(2)(A); Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir.2003). The immigration court sent notice of Wu’s October 20, 1995 hearing to his last known address by certified mail, which was returned because Wu’s attorney provided an incorrect address for petitioner. There is no evidence that delivery was improper or that nondelivery was not due to Wu’s failure to provide his correct address. See Fuentes-Argueta, 101 F.3d at 871. Thus, Wu failed to rebut the presumption of proper notice. Id. Moreover, Wu’s attorney of record received notice of the hearing by certified mail. In such a circumstance, an applicant is entitled to rescission of the order only if he files a motion to rescind within 180 days of the order of deportation and shows that his failure to appear was the result of exceptional circumstances. § 1252b(c)(3)(A) (repealed, effective 1997). Wu filed his motion to rescind more than two-and-a-half years after he was ordered deported in absentia. The motion was thus time-barred and the immigration court was without power to consider petitioner’s assertion of exceptional circumstances. The BIA did not, therefore, abuse its discretion in affirming Judge Videla’s decision to deny Wu’s motion to rescind. II Substance of Wu’s Change-in-Law Argument Although Wu is not entitled to rescission of the in absentia deportation order, he may nonetheless be entitled to have his case reopened due to an intervening change" }, { "docid": "12679474", "title": "", "text": "WOOD, Circuit Judge. These petitions present, in the aggregate, the claims of four members of the Patel family who are seeking asylum, withholding of deportation, and relief under the Convention Against Torture (CAT). In Nos. 04-3401 and 04-4159, Sunita Patel is petitioning for review of two decisions of the Board of Immigration Appeals (BIA): the first one denied her motion to reopen her asylum proceedings, and the second one denied her motion to reconsider the denial of the motion to reopen. In No. OS-1687, Kamarkant Patel (Sunita’s father), his wife Pallavi Patel, and his oldest daughter Kalpana Patel, petition for review of the BIA’s decision denying their motions to reopen their cases so that they might reapply for asylum, withholding of deportation, and relief under the CAT. All four argue, in essence, that their experience with the immigration system of this country has resembled nothing as much as the bureaucracy in Franz Kafka’s Castle, where no answers are ever consistent, contradictions abound, and frustration is the only outcome. While we have some sympathy with their plight, it is not entirely of the Board’s making. Moreover, the relief they are seeking lies within the Board’s discretion, and we cannot say that the Board abused that discretion in any of these cases. We therefore deny the petitions for review. I A. Initial Proceedings Kamarkant Patel was born on June 12, 1953, in Lichtenburg, South Africa; he is of Indian/Asian ancestry, as are approximately 2.5% of the people in South Africa, according to the CIA’s World Factbook. See http:// www.cia.gov/publieations /fact-book/geos/sf.html. Pallavi Patel, Kamar-kant’s wife, was born in India, but she later became a naturalized South African citizen. The couple have three daughters, all of whom were born in South Africa: Kalpana, Minal, and Sunita. As members of the Indian minority in that country, the family had been a target of violence, persecution, and harassment from both blacks and whites in apartheid South Africa. (South Africa recognizes April 27, 1994, as its Freedom Day; not until then was the apartheid regime at last officially ended. Id.) When the grocery store by which the" }, { "docid": "22540791", "title": "", "text": "Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). III. DISCUSSION A. Mejia received proper notice of his 1997 hearing and is not entitled to a reopening of that hearing. Mejia argues that, although he had constructive notice of his 1997 hearing, he never received actual notice, and should therefore be allowed to reopen. The BIA correctly rejected this argument, based on the twice-unclaimed notice of hearing sent by certified mail to Mejia’s proper address. An alien ordered removed in absentia has a statutory right to seek to reopen his case and petition for relief. See 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(h). . But the BIA has held that certified mail bearing notice of the original removal hearing sent to an alien’s last known address provides sufficient notice to effect service, whether or not the letter was signed for by the alien or by a responsible person at his address. In re Grijalva, 21 I. & N. Dec. 27, 34 (BIA 1995). Grijalva held that “where service of a notice of deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises.” Id. at 37. This court has held “that notice by certified mail sent to an alien’s last known address can be sufficient under the [Immigration and Nationality] Act, even if no one signed for it.” Arrieta v. I.N.S., 117 F.3d 429, 431 (9th Cir.1997). This strong presumption of effective notice by certified mail contrasts with a weaker presumption that results from regular mail service. Salta v. I.N.S., 314 F.3d 1076, 1079(9th Cir.2002). “Where a petitioner actually initiates a proceeding to obtain a benefit, appears at an earlier hearing, and has no motive to avoid the hearing, a sworn affidavit from petitioner that neither [he] nor a responsible party residing at [his] address received the notice should ordinarily be sufficient to rebut the presumption of [regular mail] delivery.” Id. Mejia initiated his proceedings to receive a benefit, appeared at earlier hearings, had no known" }, { "docid": "2573826", "title": "", "text": "travel documents. A second notice arrived, and Ghounem was ordered to surrender himself on September 10, 2003. This Court denied a Motion for Stay of Removal pending this Petition for Review. The INS deported Ghounem to Egypt on September 11, 2003. II. Discussion A. Standard of Review “Because the BIA affirmed the IJ without opinion, we review the IJ’s decision directly as the final agency action.” Gebrehiwot v. Ashcroft, 374 F.3d 723, 725 (8th Cir.2004); see Loulou v. Ashcroft, 354 F.3d 706, 708 (8th Cir.2004). “We review the denial of a motion to reopen for an abuse of discretion.” Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807 (8th Cir.2003). B. Statutory Background The Immigration and Nationality Act (“INA”) allows an IJ to hold removal proceedings in absentia if aliens are given proper notice. The current statute provides that written notice in removal proceedings be “given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any).” 8 U.S.C. § 1229(a)(1). This is in contrast to the predecessor provision, 8 U.S.C. § 1252b, which provided that written notice be in person or sent by certified mail, return receipt requested. 8 U.S.C. § 1252b(a)(l) (1995) (“In deportation proceedings under section 1252 of this title, written notice ... shall be given in person to the alien (or, if personal service is not practicable, such notice shall be given by certified mail to the alien or to the alien’s counsel of record, if any).”); 8 U.S.C. § 1252b(f)(l) (1995) (“The term ‘certified mail’ means certified mail, return receipt requested.”). Under the current statute, if notice is proper and an alien fails to appear, the IJ may order the alien removed: Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the [Immigration] Service establishes by clear, unequivocal, and convincing evidence that the written" }, { "docid": "22336695", "title": "", "text": "PER CURIAM: Alexis Anin petitions for review of a final order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his deportation order. Anin argues that the BIA’s decision constituted an abuse of discretion because he lacked proper notice of his deportation proceedings, his lack of notice violated due process, his lawyer’s ineffective assistance of counsel amounted to an exceptional circumstance, and he possessed a viable political asylum claim that the BIA ignored. We hold that the BIA did not abuse its discretion in refusing to reopen Anin’s deportation order because Anin received proper notice of his deportation proceeding under section 242(B)(c)(8)(B) of the Immigration and Nationality Act (“INA”), his exceptional circumstances argument was time-barred pursuant to INA section 242(B)(c)(3)(A), and because the BIA is not required to reopen deportation orders based on political asylum claims like Anin’s under 8 C.F.R § 3.2(a) (1999). Accordingly, the final judgment of the BIA is AFFIRMED. I. Petitioner Alexis Anin, a native of Burki-na-Faso, entered the United States on October 30, 1991 with a C-l visa as an “alien in transit.” The visa gave him permission to remain in the United States only until the next day. However, Anin did not depart as required and remained in the United States without seeking approval from the Immigration and Naturalization Service (“INS”). During this time he met Linda McSwain, a United States citizen, and married her on January 14, 1994. On July 26, 1994, the INS concluded that Anin had entered into a sham marriage for the purpose of obtaining immigration benefits and issued an order to show cause under INA section 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994). While in custody, pursuant to the order to show cause, Anin filed an application for asylum. His wife also filed an 1-130 Visa Petition seeking permanent residence status for Anin. On November 16, 1994, the Immigration Court scheduled a February 21,1995 hearing on these matters, and sent notice of the hearing by certified mail to Anin’s attorney of record. The notice was received and signed by someone in the office of Anin’s attorney. Neither" }, { "docid": "22799632", "title": "", "text": "OVERVIEW T.G. NELSON, Circuit Judge. Petitioner seeks review of: (1) dismissal by the Board of Immigration Appeals (“Board”) of his appeal from an in absentia deportation order on the ground that he did not receive notice of his deportation hearing; and (2) the denial of his motion to reopen by the Immigration Judge on the ground that he presented “exceptional circumstances” that excused his failure to appear. We have jurisdiction under 8 U.S.C. § 1105a(a). Petitioner raises for the first time a due process objection as to notice and opportunity to appear at the deportation hearing. For the reasons stated below, we deny the petition. NOTICE OF THE DEPORTATION HEARING Notice of hearing required by 8 U.S.C. § 1252b(a)(2) was mailed by certified mail to petitioner at his address of record by the Office of the Immigration Judge on December 30, 1994. Petitioner conceded that he was living at that address on that date. This is sufficient notice under 8 U.S.C. § 1252b(c)(1), which provides that notice of a deportation hearing is sufficient “if provided at the most recent address provided [to the INS by the alien as required by] subsection (a)(1)(F) of this section.” EXCEPTIONAL CIRCUMSTANCES Petitioner is a Lebanese refugee who was involved in the anti-Syrian movement in Lebanon. Members of petitioner’s family were killed by the Syrian military, and petitioner himself has received death threats. Petitioner was imprisoned and tortured by the Syrian military and fled to the United States upon his release. • [2] The sole issue in a motion to reopen is whether an alien can demonstrate exceptional circumstances that excuse his failure to appear at the deportation hearing. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). While we have sympathy for petitioner’s personal circumstances, they are not relevant to the issue before this court — his failure to appear. Petitioner’s only claim of exceptional circumstances was that he did not actually and personally receive the notice of hearing. However, as noted above, it was mailed to his last known address and receipt was acknowledged by someone at that address. Thus, petitioner did not" }, { "docid": "4308644", "title": "", "text": "the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1252b (1996). He further asserted that he was not at fault for failing to receive the notice because he was still living at the Dean Street address when the notice was sent. The IJ denied the motion to reopen in May 2008, finding that (1) the hearing notice was properly sent by certified mail to the Dean Street address that Sanchez had provided, and (2) the motion was untimely under 8 C.F.R. § 1003.23(b)(4)(iii) because Sanchez filed it more than 180 days after entry of the in absentia deportation order. Sanchez appealed the IJ’s ruling to the BIA. In addition to repeating the arguments that he made to the IJ, Sanchez noted that the hearing notice was returned to the Immigration Court as undeliverable. He argued that his motion was therefore timely because a motion to reopen an in absentia deportation order may be filed at any time if the alien demonstrates that he did not receive proper notice. See 8 U.S.C. § 1252b(c)(3)(B). The BIA affirmed the IJ’s decision. Although the hearing notice was returned undelivered by the Postal Service, the BIA concluded that Sanchez “received notice pursuant to Matter of Grijalva, 21 I. & N. Dec. 27 (BIA 1995).” The BIA reasoned that, under Grijalva, a hearing notice sent by certified mail to the alien’s last known address establishes “by clear, unequivocal, and convincing evidence that the alien received ‘written notice’ of the deportation hearing within the meaning of [8 U.S.C. § 1252b(c)(1) ].... [T]here ‘is no requirement that the certified mail return receipt be signed by the alien or a responsible person at his address to effect service.’ ” (Quoting Grijalva, 21 I. & N. Dec. at 34). The BIA further reasoned that “where a notice of hearing is sent through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises.” (Citing Grijalva, 21 I. & N. Dec. at 37.) In this case, the record shows that the Immigration Court sent the" }, { "docid": "22244802", "title": "", "text": "due to Wu’s failure to provide his correct address. See Fuentes-Argueta, 101 F.3d at 871. Thus, Wu failed to rebut the presumption of proper notice. Id. Moreover, Wu’s attorney of record received notice of the hearing by certified mail. In such a circumstance, an applicant is entitled to rescission of the order only if he files a motion to rescind within 180 days of the order of deportation and shows that his failure to appear was the result of exceptional circumstances. § 1252b(c)(3)(A) (repealed, effective 1997). Wu filed his motion to rescind more than two-and-a-half years after he was ordered deported in absentia. The motion was thus time-barred and the immigration court was without power to consider petitioner’s assertion of exceptional circumstances. The BIA did not, therefore, abuse its discretion in affirming Judge Videla’s decision to deny Wu’s motion to rescind. II Substance of Wu’s Change-in-Law Argument Although Wu is not entitled to rescission of the in absentia deportation order, he may nonetheless be entitled to have his case reopened due to an intervening change in law. When the BIA reviews an IJ’s denial of a motion to reopen, it must “address all the factors relevant to petitioner’s claim.” Zhao, 265 F.3d at 97. It must also apply its own standards and precedent consistently when faced with similar facts. Id. at 95. Failure to do either constitutes an abuse of discretion. Id. at 95, 97. In its August 31, 1999 decision denying Wu’s appeal of Judge Videla’s September 2, 1998 denial of Wu’s motion to reopen, the BIA did not mention Wu’s change-in-law argument. Moreover, in its March 9, 2000 decision denying Wu’s motion to reconsider, the Board erroneously stated that Wu failed to raise a change in law at all. However, in order for Wu’s change-in-law argument to be relevant, it must be based on an actual change in the law that favorably affects his asylum claim. At the time Wu was ordered deported in absen-tia, coercive family planning policies, including forced abortion and sterilization, were not per se persecutive, and therefore aliens alleging they had been subjected to" }, { "docid": "4308645", "title": "", "text": "The BIA affirmed the IJ’s decision. Although the hearing notice was returned undelivered by the Postal Service, the BIA concluded that Sanchez “received notice pursuant to Matter of Grijalva, 21 I. & N. Dec. 27 (BIA 1995).” The BIA reasoned that, under Grijalva, a hearing notice sent by certified mail to the alien’s last known address establishes “by clear, unequivocal, and convincing evidence that the alien received ‘written notice’ of the deportation hearing within the meaning of [8 U.S.C. § 1252b(c)(1) ].... [T]here ‘is no requirement that the certified mail return receipt be signed by the alien or a responsible person at his address to effect service.’ ” (Quoting Grijalva, 21 I. & N. Dec. at 34). The BIA further reasoned that “where a notice of hearing is sent through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises.” (Citing Grijalva, 21 I. & N. Dec. at 37.) In this case, the record shows that the Immigration Court sent the hearing notice by certified mail to Sanchez’s Dean Street address. Sanchez never notified the Immigration Court of any address changes. Although Sanchez contended that he was living at the Dean Street address when the hearing notice was sent, he submitted no proof to support his claim. Under the rules set forth in Grijalva, the BIA determined that Sanchez had failed to rebut the presumption that he had received proper notice of his hearing. The BIA therefore dismissed Sanchez’s appeal. Sanchez filed a petition for review and a motion to stay removal with this court in July 2009. In October 2009, we granted his motion to stay removal pending the outcome of his petition. II. ANALYSIS A. Standard of review Where the BIA provides its own reasoning for denying a motion to reopen rather than summarily affirming the IJ, we review the BIA’s decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). Our review is conducted under the abuse-of-discretion standard. Acquaah v. Holder, 589 F.3d 332, 334 (6th Cir.2009). “The" }, { "docid": "22619729", "title": "", "text": "WARDLAW, Circuit Judge: Balbir Singh (“Singh”) petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from an Immigration Judge’s denial, of his motion to reopen deportation proceedings held in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1105a (1996). Because the BIA erred when it relied upon newly-created evidentiary standards in dismissing Singh’s appeal, we grant the petition. I. Singh, a 38-year-old native and citizen of India, entered the United States without inspection on August 8, 1993. On January 14, 1994, Singh filed an application for asylum claiming persecution based on religion, membership .in a particular social group, and political opinion. Singh'asserted he is “a devout follower of the Sikh faith” and an active member of the Akali Dal political party. Singh’s- declarations described numerous instances of violence and persecution by Indian police authorities and “anti-Sikh antagonists.” The asylum officer denied the asylum application. An order to show cause issued on February 8, 1996, alleging that Singh was de-portable. Singh was ordered to appear before an immigration judge on June 19, 1996. Singh did not appear at his asylum hearing. The Immigration Judge ruled that because Singh had received notice, and a reasonable opportunity to be present, and had not presented any cause for his absence, the hearing could proceed in absen-tia. After hearing evidence presented by the INS, the Immigration Judge found Singh to be deportable. On September 26, 1996, Singh filed a timely motion to. reopen'his deportation hearing. See 8 U.S.C. § 1252b(c)(3)(A) (1996) (motion to reopen deportation proceedings held in absentia must be filed within 180 days). In support of his motion to reopen, Singh declared' that he “tripped accidently, in the home of his friend Par-deep Singh,” twisted his foot so severely that he could not go to work, and “remained confined to bed for two weeks.” Singh’s sworn,statement also asserted that he could not afford to see a doctor “due to financial strain,” but that he took Tylenol caplets for pain and his friend massaged his injured foot with oil. Singh also submitted a corroborative declaration from Pardeep Singh," }, { "docid": "4308652", "title": "", "text": "sent notice of a deportation hearing by certified mail as required by 8 U.S.C. § 1252b(a)(2). When the Immigration Court received the certified-mail return receipt, the receipt indicated that the mail was unclaimed despite several attempts to deliver the mail to the respondent. Because the respondent failed to appear at the hearing, the IJ held the hearing in absentia and ordered that the respondent be deported. The respondent then filed a motion to reopen, claiming that he never received the hearing notice. His motion was denied by the IJ, who found that “the respondent was properly notified of the hearing ... because the notice, though unclaimed, was sent to him by certified mail [at] his last known address.” Id. at 29. On appeal, the BIA concluded “that the Immigration Judge properly denied the motion to reopen because the respondent failed to demonstrate that he did not receive notice of the deportation proceeding.” Id. at 36. The BIA also found that “where service of a notice of a deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises.” Id. at 37. To overcome this presumption and establish nonreceipt, an alien “must present substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the [alien’s] failure to provide an address where he [or she] could receive mail.” Id. The strong presumption of receipt set forth in Grijalva has received support in both the Sixth Circuit and in several of our sister circuits. Although we have found no Sixth Circuit case that squarely addresses whether the strong presumption of receipt in Grijalva is the law in this circuit for notices sent by certified mail, several Sixth Circuit cases analyzing notices sent by regular mail have recognized both the presumption of receipt that arises with proper mailing and that this presumption is even stronger for notices sent by certified mail." }, { "docid": "165004", "title": "", "text": "PREGERSON, Circuit Judge: Petitioners Gangaram N. and Jasuben G. Patel (Patels), husband and wife, seek review of an order of the Board of Immigration Appeals (BIA) denying their motion to reopen. The Patels contend that the BIA: (1) abused its discretion in determining that they had failed to establish extreme hardship for purposes of suspension of deportation under 8 U.S.C. § 1254(a)(1) (1982) and (2) erred in rejecting their contention that section 19 of the Immigration and Nationality Amendments Act of 1981, Pub.L. No. 97-116, § 19, 95 Stat. 1611, 1621 (1981), codified at 8 U.S.C. § 1151 and accompanying note (1982), required the Attorney General to adjust the Patels’ status as a matter of law. We affirm the order of the BIA. The Patels are natives and citizens of India who first entered the United States in June 1974 as nonimmigrant visitors for pleasure. Shortly after arriving here, the Patels entered into a ten-year lease to operate an apartment-hotel. Before their authorized stay expired, the Patels moved the district director to adjust their status under 8 U.S.C. § 1255. Their application was based on their business investment. The district director denied their application. The Patels remained longer than authorized and deportation proceedings were initiated. In the deportation proceedings the Patels renewed their application for adjustment of status based on their business investment. After a lengthy deportation proceeding, the BIA concluded that the Pa-tels met the criteria for investor exemption under 8 C.F.R. § 212.8(b)(4) (1975). The BIA, however, denied their application for adjustment of status as a matter of discretion because the BIA believed that the Pa-tels had a preconceived intent to remain in the United States when they applied for their nonimmigrant visitors’ visas. The BIA dismissed the Patels’ appeal. In an unpublished disposition, we affirmed the BIA’s decision. Patel v. INS, 703 F.2d 576 (9th Cir.1983). On April 8, 1983, the Patels filed a motion to reopen with the BIA to apply for suspension of deportation under 8 U.S.C. § 1254(a)(1) and for adjustment of status under 8 U.S.C. § 1255(a) as nonpreference alien investors. The BIA" } ]

[ { "docid": "10048167", "title": "", "text": "offense is § 2L1.2, which has a base offense level of 8. However, if Bernal-Aveja “previously was deported, or unlawfully remained in the United States, after a conviction for a felony that is ... a crime of violence,” the base offense level is increased by 16 levels. U.S.S.G. § 2L1.2(b)(l)(A)(ii). The application notes to § 2L1.2 state that “a crime of violence” includes “burglary of a dwelling.” U.S.S.G. § 2L1.2, cmt. n. l(B)(iii). ’ The district court determined that Bernal-Ave-ja’s 1996 state court conviction for third degree burglary was a “burglary of a dwelling,” therefore constituting “a crime of violence,” and enhanced Bernal-Aveja’s sentence accordingly. The government bears the burden of proving that Bernal-Aveja was previously convicted of a crime of violence, ie., burglary of a dwelling. See United States v. Dupree, 323 F.3d 480, 491 (6th Cir.2003) (“The burden is on the government to prove, by a preponderance of the evidence, that a particular sentencing enhancement applies.”); United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir.1989) (“The government bears the burden to establish enhancement factors, where contested.”). In assessing whether the government has met its burden of proving that a prior conviction qualifies as a crime of violence, we have held that the district court should look at the indictment in the previous case, and, if the defendant pleaded guilty, “it is appropriate for the district court to consider defendant’s plea agreement.” United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir.1995). In addition, the Supreme Court recently dealt with a dispute over the permissible methods of proving that a defendant was previously convicted of a specific type of burglary offense, holding that “a later court determining the character of an admitted burglary 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.” Shepard v. United States, — U.S. -, -, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005). Bernal-Aveja’s plea agreement for the burglary conviction was not made a part of the record before the district" } ]

[ { "docid": "13127007", "title": "", "text": "given case. To require crimes of violence in all fact patterns to lead to a violent or harmful end not only would ignore our categorical approach to this inquiry, but it also would read the “serious potential risk of physical injury” language out of the Guideline. Id. at 583 (internal citations omitted) (citing U.S.S.G. § 4B1.2(a)(2)). The ACCA does not require certainty of injury, only that the predicate crime “involve[ ] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). As in Martin, we find that possessing a dangerous ordnance or deadly weapon while fleeing a theft, or while committing or attempting to commit a theft, presents such a potential risk to others. We therefore affirm the district court’s conclusion that aggravated robbery under Ohio law constitutes a violent felony and uphold the district court’s calculation of Sanders’s third predicate violent felony. IV. In his second argument on appeal, Sanders argues that the district court improperly found that he had been convicted of the first violent felony, the 1981 robbery conviction in Mahoning County. During re-sentencing proceedings, the Government provided three documents to prove Sanders’s conviction: (1) an indictment that charged Sanders with aggravated robbery in violation of Ohio Rev.Code § 2911.01(A)(1); (2) a guilty plea stating that Sanders pleaded guilty to robbery as defined under Ohio Rev.Code § 2911.02(A); and (3) a journal entry stating that Sanders’s sentence was imposed under Ohio Rev.Code § 2911.01(A)(1) and “reduced to burglary” under Ohio Rev. Code § 2911.02(A). Sanders argues that the facially inconsistent documents cannot establish that he was convicted of either robbery or burglary, and the district court should not have counted this conviction as a predicate violent felony. As discussed above, Taylor and Shepard require the sentencing court to utilize a “categorical approach” when determining the nature of the underlying offense, and they further hold that in employing that approach, the court is restricted to looking to certain types of documents. Shepard, 544 U.S. at 16-17, 125 S.Ct. 1254; Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Sanders contends that" }, { "docid": "14725312", "title": "", "text": "at 598 & n. 8, 110 S.Ct. 2143; United States v. McFalls, 592 F.3d 707, 716-17 (6th Cir.2010). If a state criminal statute could be violated in a way that would constitute a crime of violence and in a way that would not, we look beyond the statutory language and examine certain state-court documents (the “Shepard documents”) to determine whether the conviction necessarily depended on the commission of a crime of violence. United States v. McMurray, 653 F.3d 367, 372 (6th Cir.2011) (quoting United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010)); see also Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). When the prior conviction resulted from a guilty plea, we look to documents that identify what facts the defendant “ ‘necessarily admitted’ ” by pleading guilty. United States v. Medina-Almaguer, 559 F.3d 420, 423 (6th Cir.2009) (quoting Shepard, 544 U.S. at 16, 125 S.Ct. 1254). Such documents can include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,” Shepard, 544 U.S. at 16, 125 S.Ct. 1254; we do not, by contrast, consider police reports or complaint applications, id. This approach ensures that sentencing hearings do not become collateral trials. Id. at 23, 125 S.Ct. 1254. B. New Mexico Aggravated Assault— Categorical Analysis 1. Enumerated-Offense Prong In New Mexico, aggravated assault (deadly weapon) is defined as “unlawfully assaulting or striking at another with a deadly weapon.” N.M. Stat. § 30-3-2(A). Assault is in turn defined as “(A) an attempt to commit a battery upon the person of another; (B) any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or (C) the use of insulting language toward another impugning his honor, delicacy or reputation.” Id. § 30-3-1. Under the Model Penal Code, a defendant commits aggravated assault if he or she (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme" }, { "docid": "23077266", "title": "", "text": "involves conduct that presents a serious potential risk of physical injury to another!;.] 18 U.S.C. § 924(e)(2)(B). We refer to § 924(e)(2)(B)® as the “use of physical force” clause and the portion of § 924(e)(2)(B)(ii) following the enumerated offenses as the “residual clause.” 1. Application of the Categorical Approach In determining whether a particular offense qualifies as a violent felony, courts must use the “categorical approach.” Taylor v. United States, 495 U.S. 575, 600, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). They must look only to the fact of conviction and the statutory definition of the prior offense and not the particular facts underlying that conviction. James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586,167 L.Ed.2d 532 (2007); see also United States v. Bartee, 529 F.3d 357, 359 (6th Cir.2008). This approach “avoid[s] the practical difficulties and potential unfairness of permitting a sentencing court to relitigate facts and delve into the details of a prior conviction.” Bartee, 529 F.3d at 359 (citing United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)). At issue are Mitchell’s 1988 and 2003 robbery convictions under Tennessee law. In 1988, Tennessee law defined robbery as “the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear.” Tenn.Code Ann. § 39-2-501(a) (1982) (repealed). The version in effect in 2003 differed only slightly, defining robbery as the “intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn.Code Ann. § 39-13-401. A. Violent Felony under the “Use of Physical Force” Clause - As a threshold matter] “[t]he meaning of ‘physical force’ in § 924(e)(2)(B)® is a question of federal law, not state law.” Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). “Physical force” in turn is “force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265 (citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.2003)). However, in determining the meaning or scope of robbery, we" }, { "docid": "22924894", "title": "", "text": "offender status. - Defendant challenges this finding on appeal, contending that reckless endangerment does not constitute a “crime of violence” under Tennessee law. Under the Guidelines, a “crime of violence” is defined as follows: [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, 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). Under the “categorical approach” for determining whether a prior conviction constitutes a crime of violence under § 4B1.2(a), we must look “only to the fact of conviction and the statutory definition—not the facts of the underlying offense—to determine whether that definition supports a conclusion that the convic tion was for a crime of violence.” United States v. Bartee, 529 F.3d 357, 359 (6th Cir.2008); see also James v. United States, 550 U.S. 192, 201-02, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In a case where the statutory definition is ambiguous and where a defendant has pleaded guilty, we may also consider the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also Skipper, 552 F.3d at 492; Bartee, 529 F.3d at 359. Under Tennessee law, reckless endangerment is committed by one “who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury.” TENN. CODE ANN. § 39-13-103(a). The offense becomes a felony when “committed with a deadly weapon,” TenN.Code ANN. § 39-13-103(b), which includes a motor vehicle, State v. Wilson, 211 S.W.3d 714, 719 (Tenn.2007). This offense does not fall within the language of § 4B1.2(a)(l) because it does not involve the “use, or threatened use of physical force against the person of another,” and it clearly does not" }, { "docid": "9925652", "title": "", "text": "into buildings) which is subject to a federal sentence enhancement and non-generic burglary (burglary into other structures, e.g., boats or vehicles) which is not. Id. at 16-17, 125 S.Ct. 1254. The Supreme Court, casting its decision as adherence to the “heart” of Taylor, id. at 23, 125 S.Ct. 1254, confirmed that Taylor applied to convictions based on guilty pleas. Id. at 19, 125 S.Ct. 1254. It further held that in such cases, a court’s inquiry is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Id. at 26, 125 S.Ct. 1254 (emphasis added). Police reports and criminal complaint applications would not do. To be sure, the rulings applied not to the Sentencing Guidelines’ definition of a crime of violence but to the Armed Career Criminal Act’s definition of burglary, but faithfulness to this Circuit’s precedents mandates application of Shepard as well as Taylor to § 4B1.2 of the Guidelines. See United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). So since Shepard, to determine whether a prior conviction pursuant to a guilty plea constitutes a crime of violence, the sentencing court must, first, decide whether the statutory definition, by itself, supports a conclusion that the defendant was convicted of a crime of violence. If the statutory definition embraces both violent and non-violent crimes or is otherwise ambiguous, the court, second, may look to the “charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information” to determine whether the violent or non-violent aspect of the statute was violated. Shepard, 544 U.S. at 26, 125 S.Ct. 1254; see United States v. Galloway, 439 F.3d 320, 323 (6th Cir.2006); Foreman, 436 F.3d at 641. 2. Application of the Categorical Approach First we consider whether the statutory description of attempted" }, { "docid": "23186995", "title": "", "text": "her child. § 39-13-102(b). In doing so, § 39-13-102 encompasses more conduct than generic aggravated assault, and therefore it does not categorically qualify as a crime of violence under the enumerated-offense prong. 2. Modified-Categorical Approach Under the categorical approach, it is unclear whether Adams’s aggravated-assault conviction constitutes a crime of violence, so we turn to the Shepard documents to determine, if we can, which subsection of § 39-13-102 Adams was convicted of violating. We may look “to the terms of the charging document, the terms of a plea agreement or transcript of collo quy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Furthermore, “our inquiry is limited to facts [the] defendant necessarily admitted in entering a guilty plea.” McMurray, 653 F.3d at 377 (quoting United States v. Medina-Almaguer, 559 F.3d 420, 424 (6th Cir.2009)) (alteration in original; internal quotation marks omitted). We may not consider the factual recitations in the PSR. United States v. Hockenberry, 730 F.3d 645, 666-67 (6th Cir.2013); United States v. Wynn, 579 F.3d 567, 576 (6th Cir.2009) (citing Bartee, 529 F.3d at 361). In this case, the indictment, plea agreement, and state-court judgment demonstrate that Adams necessarily pleaded guilty to a violation of Tennessee Code Annotated § 39-13-102(a)(l). In the indictment, the grand jury charged Adams with “unlawfully and intentionally, knowingly!,] or recklessly [causing] ERIC THORNTON to reasonably fear imminent bodily injury, by use or display of a deadly weapon, namely, a handgun, ... in violation of [TenmCode Ann.] § -39-13-102, a Class C Felony....” R. 654 at Ex. 2 (Indictment); see also R. 652 (Adams Am. Sent. Mem. at 2-3) (Page ID # 1310-11) (quoting indictment). Because the only aggravating factor that the grand jury listed was the use or display of a deadly weapon, Adams must have been charged with and pleaded guilty to violating either § 39-13-102(a)(l)(B), which requires a mens rea of intent or knowledge, or § 39-13-102(a)(2)(B), which requires only recklessness. While the indictment references" }, { "docid": "23186989", "title": "", "text": "would not, [we] may consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction.” United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010) (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). 1. Categorical Approach We first consider whether a prior conviction under Tennessee Code Annotated § 39-13-102 -categorically qualifies as a crime of violence. At the time of Adams’s conviction, § 39-13-102 read: (a) A person commits aggravated assault who: (1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon; or (2) Recklessly commits an assault as defined in § 39-13-101(a)(l), and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon. (b) A person commits aggravated assault who, being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect such child or adult from an aggravated assault as defined in subdivision (a)(1) or aggravated child abuse as defined in § 39-15-402. (c) A person commits aggravated assault who, after having been enjoined or restrained by an order, diversion or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault against an individual or individuals, intentionally or knowingly attempts to cause or causes bodily injury or commits or attempts to commit an assault against such individual or individuals. (d) Aggravated assault under subdivision (a)(1) or subsection (b) or (c) is a Class C felony. Aggravated assault under subdivision (a)(2) is a Class D felony.... Furthermore, in Tennessee at that time: (a) A person commits assault who: (1) Intentionally, knowingly or recklessly causes bodily injury to another; (2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as" }, { "docid": "22924895", "title": "", "text": "127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In a case where the statutory definition is ambiguous and where a defendant has pleaded guilty, we may also consider the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also Skipper, 552 F.3d at 492; Bartee, 529 F.3d at 359. Under Tennessee law, reckless endangerment is committed by one “who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury.” TENN. CODE ANN. § 39-13-103(a). The offense becomes a felony when “committed with a deadly weapon,” TenN.Code ANN. § 39-13-103(b), which includes a motor vehicle, State v. Wilson, 211 S.W.3d 714, 719 (Tenn.2007). This offense does not fall within the language of § 4B1.2(a)(l) because it does not involve the “use, or threatened use of physical force against the person of another,” and it clearly does not involve “burglary of a dwelling, arson, or extortion, [or] use of explosives” under § 4B1.2(a)(2). Accordingly,, the offense can only be considered a “crime of violence” if we conclude that it “otherwise involves conduct that presents a serious potential risk of physical injury to another” under § 4B1.2(a)(2). This court has previously held that a Tennessee conviction for felony reckless endangerment constitutes a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”) because “no scenario exists in which an individual could commit felony reckless endangerment without creating a serious risk of harm to others.” United States v. Bailey, 264 Fed.Appx. 480, 482 (6th Cir.2008). More recently, however, this court remanded a case to the district court for resentencing where the district court had determined that felony reckless endangerment in Tennessee constituted a “crime of violence” under § 4B1.2(a). United States v. Johnson, No. 06-6545, 2009 WL 224036, at *7 (6th Cir. Jan.30, 2009). The Johnson court reasoned that the Supreme Court’s recent decision in Begay v. United States, — U.S. —, 128 S.Ct." }, { "docid": "22278789", "title": "", "text": "passenger window. Id. at 181. On this compelling evidence, whatever the burden of proof and by whomever borne, it is inconceivable that any court could make the requisite § 3559(c)(3)(A) finding that “no firearm” was used in the course of the charged robbery conspiracy. As for Snype’s prior state robbery convictions, he submits that he carried his § 3559(c)(3)(A) burden by pointing to his plea allocutions for these crimes, which admit only that he or his confederates carried firearms during these robberies, not that they ever used the weapons in the course thereof. See generally Bailey v. United States, 516 U.S. 137, 146, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (drawing distinction between use and carrying of firearm for purposes of 18 U.S.C. § 924(c)(1)). In the district court, Snype appears to have raised no objection to the sentencing judge’s observation that the use or threatened use of a dangerous instrument was a necessary element of first degree robbery, the serious violent felony at issue in his 1981 and 1983 convictions. See N.Y. Penal Law § 160.15(3). Only on appeal does he note that first degree robbery can also be committed by a person “armed with a deadly weapon.” Id. § 160.15(2). The point is of no significance. The fact that Snype did not specifically allocute to use of the firearms that he and his confederates carried in the course of the state robberies at issue hardly constitutes “clear and convincing” evidence that firearms were not deployed in these crimes. In state court proceedings, the prosecution proffered that Snype had brandished a firearm in both the 1981 and 1983 robberies. Indeed, it represented that in fleeing from the 1983 robbery, Snype had fired a shot at a pursuing customer. Whatever categorical limits might apply to the prosecution in proving that a prior conviction triggers a statutory sentencing enhancement, see Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005) (holding that court could look only to “the statutory definition” of a crime, the “charging document, written plea agreement, transcript of plea colloquy, and any" }, { "docid": "23057813", "title": "", "text": "state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n.l(B)(iii). The commentary does not further define aggravated assault. See id. The parties dispute whether Mungia’s prior conviction qualifies as the enumerated offense of aggravated assault. Mungia was convicted in 1992 under Tennessee Code § 39-13-102. The Tennessee statute in effect at the time of Mungia’s conviction provided: (a) A person commits aggravated assault who: (1) Commits an assault as defined in § 39-13-101, and: (A) Causes seriously bodily injury to another; or (B) Uses or displays a deadly weapon Tenn.Code § 39-13-102 (1991). Section 39-13-101 provided: (a) A person commits assault who: (1) Intentionally, knowingly or recklessly causes bodily injury to another; (2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative Tenn.Code § 39-13-101 (1991). In determining which subpart of the statute formed the basis for Mungia’s conviction, Shepard v. United States permits courts to examine “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.” 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The Tennessee indictment alleged that Mungia “did unlawfully, intentionally, knowingly and recklessly cause serious bodily injury to [the victim] by use of a deadly weapon, to wit, a handgun.” At oral argument, the parties discussed the import of the indictment’s charging of the mental culpability in the conjunctive. In light of conflicting case law on the matter, we will assume without deciding that Mun-gia pleaded guilty to the least culpable mental state, “recklessly.” In deciding whether a prior statute of conviction qualifies as a crime of violence, this court has alternatively employed (1) a “common sense approach,” defining the offense according to its “ordinary, contemporary, [and] common meaning,” or (2) a “categorical approach,” defining the offense according to a “generic, contemporary definition.”" }, { "docid": "14725333", "title": "", "text": "force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010); see also McMurray, 653 F.3d at 374. “In determining the nature of a prior conviction, we are to apply a ‘categorical’ approach, looking to the statutory definition of the offense and not the particular facts underlying the conviction.” McMurray, 653 F.3d at 372 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). “If it is possible to violate the statute in a way that would constitute a [violent felony or crime of violence] and in a way that would not, the court may [utilize a modified-categorical approach and] consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction.” Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010)). “In a pleaded case, the documents must demonstrate that the plea ... necessarily rested on the fact identifying the [crime as a qualifying offense].” Id. at 377 (citation and internal quotation marks omitted). “[T]wo types of proof ... that might suffice to establish that a plea ‘necessarily rested on the elements of a predicate offense [are]: (i) proof that the defendant admitted to predicate conduct when confirming the factual basis for a valid plea; [and] (ii) proof that the charge was narrowed to include only predicate conduct.” Id. at 378 (citation and internal quotation marks omitted). The New Mexico statute at issue defines “aggravated assault” with a deadly weapon as: “(A) unlawfully assaulting or striking at another with a deadly weapon; (B) committing assault by threatening or menacing another while wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner, so as to conceal identity; or (C) willfully and intentionally assaulting another with intent to commit any felony.” N.M. Stat. § 30-3-2. An aggravated assault by use" }, { "docid": "18099573", "title": "", "text": "conviction for aggravated assault, Tenn.Code Ann. § 39-13-102 (1991), qualifies as a “violent felony” under the ACCA because the Tennessee statute encompasses reckless conduct. We review de novo the district court’s determination that a prior conviction qualifies as a “violent felony” under the ACCA. United States v. Gross, 624 F.3d 309, 322 (6th Cir.2010). The two-step analysis for determining whether a prior conviction qualifies as a “violent felony” is well established : In determining the nature of a prior conviction, we are to apply a “categorical” approach, looking to the statutory definition of the offense and not the particular facts underlying the conviction. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If it is possible to violate the statute in a way that would constitute a [“violent felony”] and in a way that would not, the court may consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010). 1. Taylor Categorical Analysis of Tennessee’s Aggravated-Assault Statute McMurray pleaded guilty to aggravated assault on April 29, 1993. At that time, the Tennessee statute for aggravated assault was as follows: (a) A person commits aggravated assault who: (1) Commits an assault as defined in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon; or (2) Being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect such child or adult from an aggravated assault described in subsection (a); or (3) After having been enjoined or restrained by an order, diversion or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault against an individual or individuals, attempts to cause or causes bodily injury or commits or attempts to commit an" }, { "docid": "23186988", "title": "", "text": "serious potential risk of physical injury to another person. United States v. Rodriguez, 664 F.3d 1032, 1036 (6th Cir.2012) (citing United States v. Ruvalcaba, 627 F.3d 218, 221 (6th Cir.2010)). For the sake of clarity, we will refer to these three approaches as, respectively, the “enumerated-offense prong,” the “elements prong,” and the “residual prong.” In determining whether a prior conviction qualifies as a crime of violence, we conduct a well-established two-step analysis. First, we apply the categorical approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), “looking] only to the fact of conviction and the statutory definition — not the facts underlying the offense — to determine whether that definition supports a conclusion that the conviction was for a crime of violence.” United States v. Bartee, 529 F.3d 357, 359 (6th Cir.2008) (citing United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006)). Second, “[i]f it is possible to violate the statute in a way that would constitute a crime of violence and in a way that would not, [we] may consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction.” United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010) (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). 1. Categorical Approach We first consider whether a prior conviction under Tennessee Code Annotated § 39-13-102 -categorically qualifies as a crime of violence. At the time of Adams’s conviction, § 39-13-102 read: (a) A person commits aggravated assault who: (1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon; or (2) Recklessly commits an assault as defined in § 39-13-101(a)(l), and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon. (b) A person commits aggravated assault who, being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect such child" }, { "docid": "11896770", "title": "", "text": "U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and extended to plea-based convictions in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), for determining whether a pri- or conviction constitutes a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2), has been applied by this court to the parallel determination of whether a prior conviction constitutes a “crime of violence” under USSG § 4B1.2(a). See, e.g., United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995); United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). Under this categorical approach, the court must look only to the fact of conviction and the statutory definition — not the facts underlying the offense — to determine whether that definition supports a conclusion that the conviction was for a crime of violence. United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006) (discussing Taylor and Shepard). “One of the policies animating the Court’s adoption of this approach was to avoid ‘the practical difficulties and potential unfairness’ of permitting a sentencing court to relitigate the facts and delve into the details of a prior conviction.” Id. (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143). Taylor recognized a “narrow exception” when the statutory definition is ambiguous, under which the court may examine the charging papers or jury instructions to determine whether the convicting jury necessarily found all the requisite elements of an offense that would qualify as a “violent felony” under the ACCA. Id. at 947. In addressing plea-based convictions in Shepard, the Court limited examination under this exception to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. In doing so, the Court specifically rejected the government’s call to permit consideration of police reports and criminal complaint applications to support a finding that the guilty plea could only have" }, { "docid": "9050317", "title": "", "text": "person in fear of imminent physical injury,\" Del. Code Ann. tit. 11, § 602(b) -qualifies as a \"crime of violence\" under U.S.S.G. § 2L1.2(b)(1). Ovalle-Chun, 815 F.3d at 224, 226-27 ; see also Ledoue v. Att'y Gen., 462 Fed. App'x 162, 165-66 (3d Cir. 2011) (per curiam) (unpublished) (similar). In doing so, the Fifth Circuit explicitly rejected the defendant's argument \"that aggravated menacing does not involve physical force because it only requires that the victim have the perception that there is a weapon but does not require an actual weapon.\" Ovalle-Chun, 815 F.3d at 226. The Sixth Circuit reached a similar conclusion in United States v. Gloss, 661 F.3d 317 (6th Cir. 2011), with respect to the Tennessee aggravated robbery statute, which covers \"the intentional or knowing theft of property from the person of another by violence or by putting the person in fear,\" where that theft is \"[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon; or ... [w]here the victim suffers serious bodily injury.\" Id. at 318 (alteration in original) (quoting Tenn. Code. Ann. §§ 39-13-401, 39-13-402 ). The Sixth Circuit held that a conviction under the Tennessee statute qualifies as a violent felony under the ACCA's force clause because \"[a]ny robbery accomplished with a real or disguised deadly weapon ... falls under the first clause of the definition of violent felony, as it necessarily involves 'the use, attempted use, or threatened use of physical force against the person of another.' \" Id. at 319 (quoting 18 U.S.C. § 924(e)(2)(B)(i) ). ii. Accomplice Lassend next urges us to hold that a conviction under § 160.15(4) is not a violent felony under Leocal and Johnson I because the statute does not require a defendant to intend the use of violent force as to the display of a firearm. In Leocal, the Supreme Court held that the phrase \"use ... of physical force against the person or property of another\" in 18 U.S.C. § 16(a)\"most naturally suggests a higher degree of intent" }, { "docid": "15164789", "title": "", "text": "on guilty pleas in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See, e.g., United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995); Bartee, 529 F.3d at 359. “Under this categorical approach, the court must look only to the fact of conviction and the statutory definition — not the facts underlying the offense — to determine whether that definition supports a conclusion that the conviction was for a crime of violence.” Bartee, 529 F.3d at 359 (emphasis added) (citing United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)); see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (holding that a court is required to “look only to the fact of conviction and the statutory definition of the prior offense” when determining if a prior conviction constitutes a “violent felony” under the Armed Career Criminal Act (emphasis added)); Begay, 128 S.Ct. at 1584 (“[W]e 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.”). There is, however, an exception to the categorical approach: “[W]hen the statutory definition [of the prior crime to which the defendant pleaded guilty] is ambiguous ... the court may examine ... ‘the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this informa tion.’ ” Bartee, 529 F.3d at 359 (quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254). Given this framework and the facts in the record, we must answer two questions to resolve the instant appeal. First, is a generic conviction under Ohio Rev.Code § 2907.03 categorically a “crime of violence”? Because we conclude that the answer to this question is “no,” we must next determine whether the district court could nevertheless conclude that Wynn’s conviction under § 2907.03 constitutes a “crime of violence” by using the factual" }, { "docid": "6580569", "title": "", "text": "Court elaborated, the risk arises “from the possibility that an innocent person might appear while the crime is in progress.” Id. Such risk is of course high in the case of intrusion into the actual place of habitation — or an attempt at such intrusion, as in James — but obviously much lower in the case of uninhabitable sheds up to 200 yards from a generic dwelling. Thus, South Carolina second degree burglary of a dwelling does not, under the categorical approach, present the same degree of risk as generic burglary of a dwelling, and the residual clause of the Guidelines career offender definition of violent crime does not apply. IV. Looking at the Indictments The charging documents for MeFalls’ burglary convictions, moreover, do not contain enough to make the burglary conviction a crime of violence for Guidelines career offender purposes. Although a sentencing court “ ‘may generally only look to the statutory definitions of prior offenses, and not to the particular facts underlying those convictions’ to determine whether a sentence should be enhanced, ... in cases where the statutory definition is ambiguous, a court [is permitted to] ‘go beyond the mere fact of conviction’ and examine the charging papers or jury instructions to determine whether the convicting jury necessarily found all the requisite elements of an offense that would qualify for a federal sentencing enhancement.” United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006) (quoting Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143). A sentencing court in that situation may examine “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable record of judicial information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The question in cases of guilty pleas is whether “the court documents establish that the defendant ‘necessarily admitted’ the elements of a predicate offense through his plea.” United States v. Medina-Almaguer, 559 F.3d 420, 422 (6th Cir.2009). The Government argues" }, { "docid": "9925653", "title": "", "text": "well as Taylor to § 4B1.2 of the Guidelines. See United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). So since Shepard, to determine whether a prior conviction pursuant to a guilty plea constitutes a crime of violence, the sentencing court must, first, decide whether the statutory definition, by itself, supports a conclusion that the defendant was convicted of a crime of violence. If the statutory definition embraces both violent and non-violent crimes or is otherwise ambiguous, the court, second, may look to the “charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information” to determine whether the violent or non-violent aspect of the statute was violated. Shepard, 544 U.S. at 26, 125 S.Ct. 1254; see United States v. Galloway, 439 F.3d 320, 323 (6th Cir.2006); Foreman, 436 F.3d at 641. 2. Application of the Categorical Approach First we consider whether the statutory description of attempted child abuse supports a conclusion that Armstead was convicted of a prior crime of violence. The parties agree that defendant in 1994 pled guilty to, and was convicted of, attempted child abuse in violation § 39-15-401 of Tennessee’s Criminal Code. As noted above, to fit the Guidelines’ definition of a “crime of violence” the prior crime must involve either (1) the use, attempted use, or threatened use of physical force, or (2) conduct that otherwise presents a serious potential risk of physical injury. U.S.S.G. § 4331.2(a). Significantly, the Guidelines also include an attempt to commit such crimes as a crime of violence. Id. § 4B1.2 cmt. n. 1. This court has already construed Tennessee’s child abuse statute to be ambiguous as to these § 4B1.2(a) requirements. The statute provides in relevant part as follows: Any person who knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury or neglects such a child so as to adversely affect the child’s health and welfare" }, { "docid": "23457483", "title": "", "text": "court finds that the statutory language fails to clarify whether the underlying conviction is a crime of violence, or if “it is possible to violate a criminal law in a way that amounts to a crime of violence and in a way that does not,” Ford, 560 F.3d at 422, the court may consider “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” to determine if the underlying conviction was a crime of violence. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also United States v. Jones, 673 F.3d 497, 504 n. 2 (6th Cir.2012) (calling this analysis the “modified categorical approach”). At Stafford’s sentencing, the district court found that under the categorical approach or even modified categorical approach, both of [the “aggravated-riot” convictions] qualify as predicate offenses of violence, and I further find that with respect to [Stafford’s 2005 “aggravated-riot” conviction], that the Bill of Particulars, which was filed about three months before [Stafford’s] guilty plea, makes clear that this was a crime of violence.... [T]here’s no question in the Court’s mind that this aggravated riot was a crime of violence. Stafford argues that the district court erred in applying the modified categorical approach and finding that his convictions under Ohio’s “aggravated riot” statute were violent felonies because it relied on both the PSR and the Bill of Particulars that accompanied his 2005 “aggravated-riot” conviction, both of which are impermissible documents under Shepard. The Government agrees that the district court erred in considering these documents. The Government argues, however, that we should find that Stafford’s “aggravated-riot” convictions are violent felonies based on the permissible Shepard documents in the record. This court previously considered, in an unpublished opinion, the question of whether Ohio’s “aggravated riot” offense qualifies as a “violent felony” under the ACCA. United States v. Sanders, 301 Fed.Appx. 503 (6th Cir.2008) (per curiam). In Sanders, a panel of this court determined that “aggravated riot” under the Ohio statute included both violent and non-violent" }, { "docid": "19761915", "title": "", "text": "paid or not .... ” Although the condition of involuntary servitude may result from force, coercion or imprisonment, it is not “kidnapping” unless the victim’s confinement was procured “unlawfully,” which requires the use of force, threat or fraud. Tennessee defines “aggravated kidnapping” as false imprisonment committed: (1) To facilitate the commission of any felony or flight thereafter; (2) To interfere with the performance of any governmental or political function; (3) With the intent to inflict serious bodily injury on or to terrorize the victim or another; (4) Where the victim suffers bodily injury; or (5) While the defendant is in possession of a deadly weapon or threatens the use of a deadly weapon. “Especially aggravated kidnapping” is defined as false imprisonment: (1) Accomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon; (2) Where the victim was under the age of thirteen (13) at the time of the removal or confinement; (3) Committed to hold the victim for ransom or reward, or as a shield or hostage; or (4) Where the victim suffers serious bodily injury. When determining which provision of Tennessee law was the basis for Gonzalez^ Ramirez’s conviction, this 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.” In this case, the Tennessee indictment charged Gonzalez-Ramirez with aggravated kidnapping under Tenn.Code AnN. § 39-13-304, subsections (3) [intent to inflict serious bodily injury or to terrorize] and (4) [serious bodily injury inflicted]. But Gonzalez-Ramirez did not plead guilty to that charge. Instead, he pleaded guilty to attempted kidnapping under section 39-13-303. The record does not reflect whether a new indictment was issued, and if so, what factual circumstances were alleged. Because Gonzalez-Ramirez never pleaded guilty to the indictment charging aggravated kidnapping, that indictment cannot be used to determine whether Gonzalez-Ramirez’s conviction was for a crime of violence under U.S.S.G. § 2L1.2. The record contains no appropriate document, transcript, or" } ]

[ { "docid": "10427054", "title": "", "text": "of the display from one place to another, for example, by a computer system. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 80. (Sept. 3, 1976), reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5694; Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative and Industrial Property § 6.01[4], at 6-24 (1991). “Display” covers any showing of a “copy” of the work, “either directly or by means of a film, slide, television image or any other device or process.” 17 U.S.C. § 101. However, in order for there to be copyright infringement, the display must be public. A “public display” is a display “at a place open to the public or ... where a substantial number of persons outside of a normal circle of family and its social acquaintenanees is gathered.” 2 Melville B. Nimmer, Nimmer on Copyright § 8.14[C], at 8-169 (1993). A place is “open to the public” in this sense even if access is limited to paying customers. 2 Melville B. Nimmer, Nimmer on Copyright § 8.14[C], at 8-169 n. 36 (1993); see Columbia Pictures . Indus., Inc. v. Redd Home Inc., 749 F.2d 154 (3d Cir.1984). Defendant’s display of PEI’s copyrighted photographs to subscribers was a public display. Though limited to subscribers, the audience consisted of “a substantial number of persons outside of a normal circle of family and its social acquaintenanees.” 2 Melville B. Nimmer, Nimmer on Copyright § 8.14[C], at 8-169 (1993). See also Thomas v. Pansy Ellen Products, 672 F.Supp. 237, 240 (W.D.North Carolina 1987) (display at a trade show was public even though limited to members); Ackee Music, Inc. v. Williams, 650 F.Supp., 653 (D.Kan.1986) (performance of copyrighted songs at defendant’s private club constituted a public performance). Defendant Frena argues that the affirmative defense of fair use precludes a finding of copyright infringement. “Fair use” describes “limited and useful forms of copying and distribution that are tolerated as exceptions to copyright protection.” Cable/Home Communications Corp., 902 F.2d at 843 (citing Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1494 (11th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161" } ]

[ { "docid": "16585300", "title": "", "text": "retailer’s website could click on an icon, which would then seamlessly take them to Video Pipeline’s website where the clip would be shown. As in the Lamb case, the video clips here are based exclusively on the copyrighted motion picture, and its scenes come entirely from BVHE’s movies. Plaintiff failing to argue to the contrary, and because the clip previews consist entirely of scenes excerpted from defendant’s copyrighted films, the Court finds that plaintiffs clip previews for this Internet use constitute “derivative works” under § 106(2). The Court finds that Video Pipeline’s clip previews also constitute a public performance under § 106(4). The Third Circuit has explained that § 106(4) confers upon the copyright owner the exclusive right to perform a copyrighted work publicly and to authorize such performances. See Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 61-62 (3d Cir.1986) (holding that video cassette business’s rental of rooms for viewing of movies for fee constituted “public performance” under 106(4)). To “perform” a work means “in the case of a motion picture ..., to show its images in any sequence of to make the sounds accompanying it audible.” 17 U.S.C. § 101. An individual is performing a work “whenever he does anything by which the work is transmitted, repeated, or made to recur.” Aveco, 800 F.2d at 62. To perform or display a work “publicly” means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 U.S.C. § 101. Customers of plaintiffs retailer clients can access the clip previews provided by plaintiff on the Internet. As" }, { "docid": "22594564", "title": "", "text": "whether an entity that merely passively owns and manages an Internet bulletin board or similar system violates a copyright owner’s display and distribution rights when the users of the bulletin board or similar system post infringing works. Cf. CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir.2004). . Perfect 10 also argues that Google violates Perfect 10’s right to display full-size images because Google’s in-line linking meets the Copyright Act’s definition of \"to perform or display a work ‘publicly.’ ” 17 U.S.C. § 101. This phrase means \"to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the perform-anee or display receive it in the same place or in separate places and at the same time or at different times.\" Id. Perfect 10 is mistaken. Google’s activities do not meet this definition because Google transmits or communicates only an address which directs a user’s browser to the location where a copy of the full-size image is displayed. Google does not communicate a display of the work itself. . We reject at the outset Perfect 10's argument that providing access to infringing websites cannot be deemed transformative and is inherently not fair use. Perfect 10 relies on Video Pipeline, Inc. v. Buena Vista Home Entmt, Inc., 342 F.3d 191 (3d Cir.2003), and Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 843 (Fed.Cir.1992). But these cases, in essence, simply apply the general rule that a party claiming fair use must act in a manner generally compatible with principles of good faith and fair dealing. See Harper & Row, 471 U.S. at 562-63, 105 S.Ct. 2218. For this reason, a company whose business is based on providing scenes from copyrighted movies without authorization could not claim that it provided the same public benefit as the search engine in Kelly. See Video Pipeline, 342 F.3d at 198-200. Similarly, a company whose overriding desire to replicate a competitor’s computer game led it to obtain a copy of the" }, { "docid": "1782469", "title": "", "text": "dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly .... . Because Google initiates and controls the storage and communication of these thumb nail images, we do not address whether an entity that merely passively owns and manages an Internet bulletin board or similar system violates a copyright owner's display and distribution rights when the users of the bulletin board or similar system post infringing works. Cf. CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir.2004). . Perfect 10 also argues that Google violates Perfect 10’s right to display full-size images because Google's in-line linking meets the Copyright Act’s definition of \"to perform or display a work 'publicly.' \" 17 U.S.C. § 101. This phrase means \"to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. Perfect 10 is mistaken. Google’s activities do not meet this definition because Google transmits or communicates only an address which directs a user’s browser to the location where a copy of the full-size image is displayed. Google does not communicate a display of the work itself. . We reject at the outset Perfect 10's argument that providing access to infringing web sites cannot be deemed transformative and is inherently not fair use. Perfect 10 relies on Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 342 F.3d 191 (3d Cir.2003), and Atari Games, 975 F.2d at 843. But these cases, in essence, simply apply the general rule that a party claiming fair use must act in a manner generally compatible with principles of good faith and fair dealing. See Harper & Row, 471 U.S. at 562-63, 105 S.Ct. 2218. For this reason, a company whose business is based on providing scenes from copyrighted movies without authorization" }, { "docid": "16585310", "title": "", "text": "a particular copy under § 106(5): [Sjection [109(c)] takes account of the potentialities of the new communications media, notably television, cable and optical transmission devices, and information storage and retrieval devices, for replacing printed copies with visual images. First of all, the public display of an image of a copyrighted work would not be exempted from copyright control if the copy from which the image was derived were outside the presence of the viewers. In other words, the display of a visual image of a copyrighted work would be an infringement if the image were transmitted by any method (by closed or open circuit television, for example, or by a computer-system) from one place to members of the public located elsewhere. Id. Although Congress was discussing the possibility of copyright infringement as it relates to a copy owner, its discussion of copyright infringement occurring as a result of computerized transmission is instructive here nonetheless. Under this provision, Congress intended for copyright infringement to occur when images of a copy of copyrighted work are displayed to members of the public located other than where the copy is located. By providing for this provision, Congress intended “to preserve the traditional privilege of the owner of a copy to display it directly, but to place reasonable restrictions on the ability to display it indirectly in such a way that the copyright owner’s market for reproduction and distribution of copies would be affected.” Id. In this ease, the transmittal of images of BVHE’s copyrighted motion pictures to customers of retailer licensees of Video Pipeline, presents a markedly similar see- nario envisioned by Congress, and therefore constitutes copyright infringement notwithstanding the retailer’s right to display under § 106(5). Congress could have said that the transmission of copyrighted images to customers at a distant point of sale by electronic means is within the zone of use permitted by § 109(c), but it has not done so. Thus, Video Pipeline’s argument that it is entitled to the same scope of protection as its customer retailers further fails here due to the probable unavailability of the first sale" }, { "docid": "16585297", "title": "", "text": "reserved as copyright owner under § 106 of the Copyright Act. 1. Exclusive Rights Under § 106 of the Copyright Act BVHE argues that Video Pipeline’s reproduction of the video clips provided by BVHE infringes all five of the exclusive rights that are reserved to it as owner of the copyright at issue under § 106. See 17 U.S.C. § 501(a) (“Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 121 ... is an infringer of the copyright or right of the author.”). Section 106 of the Copyright Act provides that the owner of the copyright, subject to sections 107 through 121, has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies ...; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of ... motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of ... pictorial ... works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;.... 17 U.S.C. § 106. Video Pipeline’s creation of video clips is most likely a derivative work under § 106(2). See, e.g., Lamb v. Starks, 949 F.Supp. 753, 756 (N.D.Cal.1996) (holding that defendant infringed copyright by copying trailer consisting of parts of scenes from plaintiffs movie). Though not binding, the Lamb court’s analysis of trailers, or movie previews, as a derivative work under § 106 is instructive in this case, which deals specifically with video clips of full-length copyrighted movies. In Lamb, defendant copied plaintiffs trailer of his full-length movie without consent and specially formatted it with other traders on a compilation video tape to demonstrate on defendant’s “3-D” system. The court held that “[t]he trailer clearly is a derivative of the full-length copyrighted movie,” relying on the definition of “derivative work” under § 101, which states: A" }, { "docid": "16585289", "title": "", "text": "to the following findings of fact and conclusions of law entered under Rules 52(a) and 65(d), Fed. R.Civ.P. BACKGROUND In this preliminary injunction motion, Buena Vista Home Entertainment, Inc. (“BVHE”) seeks to enjoin Video Pipeline from streaming video previews it created out of motion pictures upon which BVHE owns the copyright. BVHE is a wholly-owned, indirect subsidiary of The Walt Disney Company, in the business of manufacturing, distributing, and selling home video versions of copyrighted motion pictures and other entertainment content. (McQueen Cert. ¶ 1.) Since 1987, BVHE has been the exclusive licensee of Walt Disney Pictures and Television for the distribution of its products in the home video market. (McQueen Cert. ¶ 2.) In addition, BVHE is the exclusive distributor for Mir-amax, also a wholly-owned, indirect subsidiary of The Walt Disney Company, in the home video market. (McQueen Cert. ¶ 3.) Video Pipeline is a company founded in 1985 that compiles and organizes promotional previews from entertainment companies into promotional videos which retailers display in their stores to promote retail sales and rentals. (Horovitz Aff. ¶ 5.) Since 1985, Video Pipeline had provided promotional videos to retailers for in-store use, at times editing the material sent by the movie studios, either because it contained sales and marketing information not intended for customer viewing or because Video Pipeline’s retailer clients complained about certain inappropriate previews supplied by studios. (Horovitz Aff. ¶ 5, 6.) BVHE and Video Pipeline entered into a Master Clip Agreement dated November 7, 1988, by which BVHE granted Video Pipeline permission to use certain videotape promotional previews (“trailers”) in compilations to be exhibited in video stores to promote home video sales and rentals. (McQueen Cert. ¶4.) Beginning in 1995, home video retailers began using the Internet as a means of marketing home video products. (Horovitz Aff. ¶ 17.) In 1997, Video Pipeline began making the promotional previews available to home video retailers’ Internet websites by means of an Internet service comprised of ‘Video-Pipeline.net” to promote sales and rentals of the home video products. (Horovitz Aff. ¶ 17; McQueen Cert. ¶ 4.) VideoPipe-line.net is not a website, but" }, { "docid": "16585333", "title": "", "text": "Video Pipeline in 1988 provided for Video Pipeline’s use of previews in retailers’ in-store display only, not on the Internet. See Horovitz Aff. ¶ 5. That such an agreement did not provide for previews to be viewed in connection with online sales or rentals is telling, considering its possible foresight of the present situation of online competition between BVHE and retailer customers of Video Pipeline. Regardless of the original agreement between Video Pipeline and BVHE, the evidence indicates that the online video sales market is a multi-million, if not multi-billion, dollar industry. See Ho-rovitz Aff. ¶ 13 (“[T]he total home video products retail market is almost $20 billion annually.”); Kohler Aff. ¶ 6 (asserting that TLA Video’s sales of home video products online are approximately $6 million annually and account for 30% of the company’s annual gross revenue); Pl.’s Br. Ex. C. Video sales of a particular copyrighted motion picture on one retailer’s website, with the help of Video Pipeline’s promotional clips, would most certainly detract from possible video sales on BVHE’s own Internet site. On the other hand, the market for the copyrighted films may well be enhanced by Video Pipeline’s clip previews, because they tend to promote the films to a broadened market of potential customers who find their way to the retailers’ websites, and who might otherwise be unaware of, or unattracted to, the retail films. There is no evidence, one way or the other, of whether Video Pipeline’s clip previews increase overall sales of the copyrighted works. Under the fourth factor, the Court finds that Video Pipeline’s previews have a potentially detrimental effect upon the market for the copyrighted works, but they also have a potentially beneficial effect since they are geared to promote sales of the copyrighted works, and this weighs neither for nor against the applicability of the fair use defense. Video Pipeline argues that the infringing work, here the clip previews, has minimal effect on the market, primarily because they don’t usurp the market for the origi nal, citing On Davis v. The Gap, Inc., 246 F.3d 152, 175 (2d Cir.2001), and because" }, { "docid": "17032811", "title": "", "text": "publicly.” 17 U.S.C. 106(4). What constitutes a public performance for purposes of Section 106(4) is defined by the Copyright Act in two clauses of Section 101. Under Section 101(1), the “public place” clause, a performance is public if it occurs: at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Under Section 101(2), the “transmit” clause, a performance is public if someone: transmits] or otherwise communicate[s] a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process. Under the transmit clause, a performance is public “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. Section 101 defines “transmitting” a performance to mean: to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. In this case, Defendants are violating Plaintiffs’ exclusive right to publicly perform their Copyrighted Works by transmitting those Copyrighted Works to the public over the internet, without a license or Plaintiffs’ permission, through the use of Defendants’ Zediva service. 1. Defendants Are “Transmitting” Performances of Plaintiffs’ Copyrighted Works. Although Defendants are clearly transmitting performances of Plaintiffs’ Copyrighted Works, Defendants argue that their service offers “DVD rentals” rather than transmissions of performances, which is similar to the unsuccessful argument made by the defendant in On Command Video Corporation v. Columbia Pictures Industries, 777 F.Supp. 787 (N.D.Cal.1991). In On Command, the court held: Plaintiffs argument that On Command’s system involves not “transmissions” but “electronic rentals” similar to patrons’ physical borrowing of videotapes is without merit. On Command transmits movie performances directly under the language of the definition. The system “communicates” the motion picture “images and sounds” by a “device or process” — the equipment and wiring network — from a central console in a hotel to individual guest rooms," }, { "docid": "16585311", "title": "", "text": "members of the public located other than where the copy is located. By providing for this provision, Congress intended “to preserve the traditional privilege of the owner of a copy to display it directly, but to place reasonable restrictions on the ability to display it indirectly in such a way that the copyright owner’s market for reproduction and distribution of copies would be affected.” Id. In this ease, the transmittal of images of BVHE’s copyrighted motion pictures to customers of retailer licensees of Video Pipeline, presents a markedly similar see- nario envisioned by Congress, and therefore constitutes copyright infringement notwithstanding the retailer’s right to display under § 106(5). Congress could have said that the transmission of copyrighted images to customers at a distant point of sale by electronic means is within the zone of use permitted by § 109(c), but it has not done so. Thus, Video Pipeline’s argument that it is entitled to the same scope of protection as its customer retailers further fails here due to the probable unavailability of the first sale doctrine defense to retailers who have the right to advertise their copies of copyrighted work, but are displaying images of their copyrighted materials at a distance over the Internet. Accordingly, Video Pipeline is not entitled to the protection of the first sale doctrine as provided in § 109 of the Copyright Act. 3. Fair Use Defense Plaintiff Video Pipeline argues that it is entitled to the fair use defense. Fair use is a judicially-created defense that is now codified at § 107 of the Copyright Act. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576-77, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Congress intended for § 107 “to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (citing H.R.Rep. No. 94-1476, p. 66 (1976)). The fair use defense confers a privilege on people other than the copyright owner, “to use the copyrighted material in a reasonable manner, without his consent, notwithstanding the monopoly granted to the owner.”" }, { "docid": "16585308", "title": "", "text": "defense under 17 U.S.C. § 107(1) because “the copying complained of here was performed on a profit-making basis by a commercial enterprise [and][t]he courts have ... properly rejected attempts by for-profit users to stand in the shoes of their customers making non profit or noncommercial uses.” Princeton Press, 99 F.3d at 1389 (citation omitted). Although the discussion here focuses on the availability of the first sale doctrine to plaintiff, the principles are very similar. Here, the fact that Video Pipeline’s retailer customers may advertise their lawfully bought copies of the copyrighted motion pictures does not absolve the fact that Video Pipeline profits from its actions in creating video previews and providing the online service to allow streaming of video previews. Similar to the copy shop in Princeton Press, Video Pipeline should not be able to hide behind the lawful actions and privileges extended to its retailer customers who have abided by the Copyright Act. See also Los Angeles News Serv. v. Tullo, 973 F.2d 791, 797 (9th Cir.1992) (rejecting fair use defense based on defendants’s clients’ use for “research, scholarship and private study” because “the ultimate use to which the customer puts the tape is irrelevant”). Plaintiffs assertion that it should be entitled, as its retailer customers are, to the privilege of advertising video products, is addressed more appropriately within the confines of subsection (c) of § 109. Section 109(c), formerly subsection (b), provides: Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. 17 U.S.C. § 109(c). Congress stated that this subsection “deals with the scope of the copyright owner’s exclusive right to control the public display of a particular ‘copy’ of a work.” H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 79 (1976). Congress further explained the boundaries of the right granted to owners of" }, { "docid": "3559035", "title": "", "text": "works, (3) to distribute copies, (4) to per form publicly a copyrighted motion picture, and (5) to display publicly the individual images of a copyrighted motion picture. 17 U.S.C. § 106. To make out a prima facie case of copyright infringement for preliminary injunction purposes, Disney needed to show that the display of the clip previews likely violates any provision of § 106. See 17 U.S.C. §§ 501(a), (b). The District Court held that Video Pipeline’s clip previews likely infringe Disney’s exclusive rights under three of § 106’s provisions: subsection (2), concerning derivative works; subsection (4), dealing with public performance of motion pictures; and subsection (5), relating to public display of individual images of a motion picture. On appeal, Video Pipeline challenges the District Court’s holding that the clip previews likely violate § 106(2), asserting that the clips cannot properly be classified as derivative works. It does not contest the Court’s determination as to subsections (4) and (5). Because proof of a violation of any one subsection of § 106 states a case of illegal infringement, the District Court’s decision that Disney made a prima facie showing of infringement on the basis of subsections (4) and (5) would not be affected by any conclusion we might make as to whether the clip previews are derivative in nature. As Video Pipeline’s display of excerpts taken from the copyrighted movies clearly comes within the prohibition on public display of motion pictures, and images from a motion picture, we turn to whether Video Pipeline’s use should nonetheless be countenanced on the ground that it falls within the “fair use” doctrine. A. Fair Use Congress’s constitutional power to provide for copyright protection “is intended to motivate the creative activity of authors ... by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). At times, however, “rigid application of the copyright statute ... would stifle the very" }, { "docid": "16585298", "title": "", "text": "pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of ... pictorial ... works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;.... 17 U.S.C. § 106. Video Pipeline’s creation of video clips is most likely a derivative work under § 106(2). See, e.g., Lamb v. Starks, 949 F.Supp. 753, 756 (N.D.Cal.1996) (holding that defendant infringed copyright by copying trailer consisting of parts of scenes from plaintiffs movie). Though not binding, the Lamb court’s analysis of trailers, or movie previews, as a derivative work under § 106 is instructive in this case, which deals specifically with video clips of full-length copyrighted movies. In Lamb, defendant copied plaintiffs trailer of his full-length movie without consent and specially formatted it with other traders on a compilation video tape to demonstrate on defendant’s “3-D” system. The court held that “[t]he trailer clearly is a derivative of the full-length copyrighted movie,” relying on the definition of “derivative work” under § 101, which states: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” 17 U.S.C. § 101. This case similarly deals with clip previews consisting exclusively of scenes taken from full-length copyrighted feature films. Previously, Video Pipeline had received ready-made trailers of Disney movies that it was then authorized to exhibit in retailer’s video stores to promote home video rentals and sales. Here, however, after Video Pipeline returned the studio-made trailers to BVHE due to their disagreement over their Internet display, Video Pipeline then compiled and organized its own clip previews from the copyrighted motion pictures owned by its retailer clients. Video Pipeline provided these previews for a fee to retailers as an online service, so that customers viewing the" }, { "docid": "3559034", "title": "", "text": "request for a preliminary injunction. Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir.2000). Under this standard, questions of law receive de novo review, and questions of fact are reviewed for clear error. Id. To obtain a preliminary injunction, a party must show (1) that it is “reasonably likely to succeed on the merits” of its copyright infringement claim and (2) a likelihood that it will suffer irreparable harm if the injunction is denied. Id. Other issues to consider if relevant are (3) the likelihood of irreparable harm to the non-moving party and (4) the public interest. Id. Video Pipeline presents no arguments for issues (3) and (4), so we shall not discuss them, assuming instead that the District Court correctly held that these factors favored issuing the injunction. We therefore address the first two issues. I. Likelihood of Success on the Merits Subject to the fair use exception discussed below (and other exceptions not relevant here), copyright owners have the exclusive right (1) to reproduce the copyrighted work, (2) to prepare derivative works, (3) to distribute copies, (4) to per form publicly a copyrighted motion picture, and (5) to display publicly the individual images of a copyrighted motion picture. 17 U.S.C. § 106. To make out a prima facie case of copyright infringement for preliminary injunction purposes, Disney needed to show that the display of the clip previews likely violates any provision of § 106. See 17 U.S.C. §§ 501(a), (b). The District Court held that Video Pipeline’s clip previews likely infringe Disney’s exclusive rights under three of § 106’s provisions: subsection (2), concerning derivative works; subsection (4), dealing with public performance of motion pictures; and subsection (5), relating to public display of individual images of a motion picture. On appeal, Video Pipeline challenges the District Court’s holding that the clip previews likely violate § 106(2), asserting that the clips cannot properly be classified as derivative works. It does not contest the Court’s determination as to subsections (4) and (5). Because proof of a violation of any one subsection of § 106 states a case of illegal" }, { "docid": "16585293", "title": "", "text": "to the Master Clip License Agreement. (Horovitz Aff. ¶ 29; McQueen Cert. ¶ 6.) Video Pipeline removed the previews subject to the agreement from the Internet at BVHE’s request, but continued to make its own previews (hereinafter “clip previews”) from copies of videos of BVHE’s copyrighted motion pictures owned by its retailer clients, with the exception of one clip preview of the Belgian movie “Everybody Famous,” which was made from material provided directly by BVHE. (Horovitz Aff. ¶ 30.) Each clip preview created by Video Pipeline is approximately 120 seconds in length and consist of an opening display of the Disney or Miramax trademark, the title of the motion picture being distributed by BVHE, then two or more scenes from the motion picture, followed by another display of the title. (McQueen Cert. ¶ 11; Horovitz Aff. ¶ 32.) In addition, Video Pipeline’s clip previews have no voice over, no editing, no use of additional music, and no use or narration or other types of marketing techniques often found in studio-produced trailers. (Hearing Tr. at 19.) At issue are 62 clip previews, including those for movies such as Fantasia, Beauty and the Beast, and Pretty Woman, for purposes of this preliminary injunction. (Hearing Tr. at 87; McQueen Cert. Ex. H.) It is estimated that Internet users have streamed Video Pipeline’s clip previews over 30,000 times between November 3, 2000, and April 3, 2001. (McQueen Cert. ¶ 10.) BVHE alleges that Video Pipeline’s creation, distribution, and provision of online streaming of clip previews to video retailers in this fashion violates § 106 of the Copyright Act. Video Pipeline alleges that its clip previews do not infringe the copyrights on the underlying motion pictures, and that they are in any event protected by the “first sale” doctrine under § 109(a) of the Copyright Act and by the “fair use” doctrine under § 107 of the Copyright Act. DISCUSSION I. Preliminary Injunction Standard Defendant BVHE moves for a preliminary injunction against Video Pipeline. The standard for injunctive relief in the Third Circuit is well established. In determining whether preliminary injunctive relief is proper, a" }, { "docid": "16585299", "title": "", "text": "“derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” 17 U.S.C. § 101. This case similarly deals with clip previews consisting exclusively of scenes taken from full-length copyrighted feature films. Previously, Video Pipeline had received ready-made trailers of Disney movies that it was then authorized to exhibit in retailer’s video stores to promote home video rentals and sales. Here, however, after Video Pipeline returned the studio-made trailers to BVHE due to their disagreement over their Internet display, Video Pipeline then compiled and organized its own clip previews from the copyrighted motion pictures owned by its retailer clients. Video Pipeline provided these previews for a fee to retailers as an online service, so that customers viewing the retailer’s website could click on an icon, which would then seamlessly take them to Video Pipeline’s website where the clip would be shown. As in the Lamb case, the video clips here are based exclusively on the copyrighted motion picture, and its scenes come entirely from BVHE’s movies. Plaintiff failing to argue to the contrary, and because the clip previews consist entirely of scenes excerpted from defendant’s copyrighted films, the Court finds that plaintiffs clip previews for this Internet use constitute “derivative works” under § 106(2). The Court finds that Video Pipeline’s clip previews also constitute a public performance under § 106(4). The Third Circuit has explained that § 106(4) confers upon the copyright owner the exclusive right to perform a copyrighted work publicly and to authorize such performances. See Columbia Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59, 61-62 (3d Cir.1986) (holding that video cassette business’s rental of rooms for viewing of movies for fee constituted “public performance” under 106(4)). To “perform” a work means “in the case of a motion picture ...," }, { "docid": "16585303", "title": "", "text": "individual images nonsequentially.” 17 U.S.C. § 101. Internet transmission of copyrighted photographs constituted a “public display” even though it was limited to subscribers. See Playboy Enters., Inc. v. Frena, 839 F.Supp. 1552, 1557 (M.D.Fla.1993), overruled by statute on other grounds as stated in ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 623 (4th Cir.2001) (holding that website display of copyrighted photographs to internet subscribers was “public display”). Here, Video Pipeline allowed transmission of images of nonse-quential scenes from a motion picture to occur over the internet and be made available to all members of the public, not just subscribers as in Playboy Enterprises. Thus, Video Pipeline’s use of the copyrighted motion pictures allowed the display of its images to occur over the Internet in public and satisfies the definition of “public display.” The Court finds that because Video Pipeline’s actions violate the exclusive rights of the copyright owner BVHE, plaintiff has infringed on BVHE’s copyright. See 17 U.S.C. § 501. The next point of discussion concerns Video Pipeline’s contention that, notwithstanding its violations of § 106, it is nevertheless protected by the First Sale Doctrine and the Fair Use Defense. 2. First Sale Doctrine Video Pipeline argues that its actions of creating its own clip previews from those provided by BVHE and subsequently allowing customers of its retailer clients to view them online is protected by the First Sale Doctrine. The first sale doctrine, codified at 17 U.S.C. § 109(a), prevents the copyright owner from controlling future transfers of a particular copy of a copyrighted work after he has transferred its “material ownership” to another. Columbia Pictures v. Aveco, Inc., 800 F.2d 59, 63-64 (3d Cir.1986) (citing Columbia Pictures Indus. v. Redd Horne, 749 F.2d 154, 159 (3d Cir.1984)). Section 109(a) provides Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. 17 U.S.C. § 109(a). “Section 109(a) is an" }, { "docid": "2117767", "title": "", "text": "of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. 17 U.S.C. § 101. That section of the Act further provides that to perform a copyrighted work “publicly” means to (1) to perform it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times. 17 U.S.C. § 101. There is no question that the films would be “performed” if displayed in one of Studio 21’s video arcade booths. Studio 21 urges on its cross-appeal that there has been no infringement because there has been no public performance, see 17 U.S.C. § 106(4). Jury Instruction # 22 accurately reflected the generally accepted and unexceptional law on this subject. See, e.g., Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59 (3d Cir.1986) (showing of rented video cassettes of copyrighted films in private booths on defendant’s premises constituted an infringing public performance); Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir.1984) (same). That instruction, as delivered to the jury, provided as follows: To perform a work publicly means to perform or display it at a place open to the public. A work may be performed or displayed in a private setting, such as a booth, and still be a public performance if the booth itself is in a place open to the public. Trial Transcript, at 558. The record discloses that Studio 21 never lodged an objection to that instruction. Accordingly, as Video Views urges, Studio 21 has waived its right to challenge the subject matter of that instruction on this appeal." }, { "docid": "16585302", "title": "", "text": "each clip preview is accessed, scenes from the copyrighted motion picture are transmitted to the individual computer screens, actual points-of-sale in this case, and this replaying of selected scenes from the movie recurs when another of retailer’s customers clicks on the appropriate icon. Because transmission of the clip previews to individual computers occurs when any member of the public selects an icon that redirects him or her to Video Pipeline’s website, from which the video clips are then shown, such actions by Video Pipeline constitute a “public performance” under § 106(4). See also Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (3d Cir.1984) (holding that video store’s exhibition of movie videos to patrons for fee in private booths constituted “public performance”). In addition, the Court finds that Video Pipeline’s service of providing clip previews online constitutes a “public display” that violates the copyright owner’s exclusive right “to display the copyrighted work publicly.” 17 U.S.C. § 106(5). To “display” a work means “in the case of a motion picture ..., to show individual images nonsequentially.” 17 U.S.C. § 101. Internet transmission of copyrighted photographs constituted a “public display” even though it was limited to subscribers. See Playboy Enters., Inc. v. Frena, 839 F.Supp. 1552, 1557 (M.D.Fla.1993), overruled by statute on other grounds as stated in ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 623 (4th Cir.2001) (holding that website display of copyrighted photographs to internet subscribers was “public display”). Here, Video Pipeline allowed transmission of images of nonse-quential scenes from a motion picture to occur over the internet and be made available to all members of the public, not just subscribers as in Playboy Enterprises. Thus, Video Pipeline’s use of the copyrighted motion pictures allowed the display of its images to occur over the Internet in public and satisfies the definition of “public display.” The Court finds that because Video Pipeline’s actions violate the exclusive rights of the copyright owner BVHE, plaintiff has infringed on BVHE’s copyright. See 17 U.S.C. § 501. The next point of discussion concerns Video Pipeline’s contention that, notwithstanding its violations" }, { "docid": "16585292", "title": "", "text": "Byte actually shown to consumers.” (Ho-rovitz Aff. ¶ 26.) Thus, Video Pipeline receives its income for this service from the retailers it serves, based upon the units of time that a retailer’s customer is viewing the Video Pipeline previews. On September 13, 2000, BVHE advised Video Pipeline that it did not have permission to use the studio-supplied trailers on the Internet, nor were they cleared for online use, and requested that the previews of BVHE’s motion pictures be removed from the website immediately. (McQueen Cert. ¶ 5.) On October 24, 2000, Video Pipeline filed suit in this Court against BVHE, seeking a declaratory judgment that its use of promotional materials provided by BVHE to Video Pipeline did not violate any of BVHE’s rights under federal copyright law or any other law. (McQueen Cert. ¶ 6; Original Compl. at 1.) BVHE subsequently terminated the Master Clip License Agreement and demanded return of all trailers previously provided to Video Pipeline. (McQueen Cert. ¶ 6.) On December 21, 2000, Video Pipeline returned to BVHE 80 promotional previews subject to the Master Clip License Agreement. (Horovitz Aff. ¶ 29; McQueen Cert. ¶ 6.) Video Pipeline removed the previews subject to the agreement from the Internet at BVHE’s request, but continued to make its own previews (hereinafter “clip previews”) from copies of videos of BVHE’s copyrighted motion pictures owned by its retailer clients, with the exception of one clip preview of the Belgian movie “Everybody Famous,” which was made from material provided directly by BVHE. (Horovitz Aff. ¶ 30.) Each clip preview created by Video Pipeline is approximately 120 seconds in length and consist of an opening display of the Disney or Miramax trademark, the title of the motion picture being distributed by BVHE, then two or more scenes from the motion picture, followed by another display of the title. (McQueen Cert. ¶ 11; Horovitz Aff. ¶ 32.) In addition, Video Pipeline’s clip previews have no voice over, no editing, no use of additional music, and no use or narration or other types of marketing techniques often found in studio-produced trailers. (Hearing Tr. at 19.)" }, { "docid": "16585301", "title": "", "text": "to show its images in any sequence of to make the sounds accompanying it audible.” 17 U.S.C. § 101. An individual is performing a work “whenever he does anything by which the work is transmitted, repeated, or made to recur.” Aveco, 800 F.2d at 62. To perform or display a work “publicly” means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 U.S.C. § 101. Customers of plaintiffs retailer clients can access the clip previews provided by plaintiff on the Internet. As each clip preview is accessed, scenes from the copyrighted motion picture are transmitted to the individual computer screens, actual points-of-sale in this case, and this replaying of selected scenes from the movie recurs when another of retailer’s customers clicks on the appropriate icon. Because transmission of the clip previews to individual computers occurs when any member of the public selects an icon that redirects him or her to Video Pipeline’s website, from which the video clips are then shown, such actions by Video Pipeline constitute a “public performance” under § 106(4). See also Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (3d Cir.1984) (holding that video store’s exhibition of movie videos to patrons for fee in private booths constituted “public performance”). In addition, the Court finds that Video Pipeline’s service of providing clip previews online constitutes a “public display” that violates the copyright owner’s exclusive right “to display the copyrighted work publicly.” 17 U.S.C. § 106(5). To “display” a work means “in the case of a motion picture ..., to show" } ]

[ { "docid": "23509047", "title": "", "text": "in Isaacman and of other courts on this issue is of little moment here, since we are bound by our decision in Isaacman unless it is inapposite to this case. The first question before us, then, boils down to whether Isaacman’s narrow holding that the bankruptcy court could use its equitable power to circumvent the time limits required by Rule 4007(c) where an error of the court itself had caused the untimely filing, requires the legal conclusion that Rule 4007(e)’s time limits are not jurisdictional. We conclude that it does. By permitting equity to trump the filing deadline set by Rule 4007(c) in one particular circumstance, Isaacman, despite its explicitly narrow holding, compels the conclusion that the deadline is not jurisdictional, for to hold to the contrary would be to hold that equitable considerations can excuse jurisdictional defects. Since “a litigant’s failure to clear a jurisdictional hurdle can never be ‘harmless’ or waived by a court,” Torres v. Oakland Scavenger Company, 487 U.S. 312, 317, n. 3, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the filing deadline cannot be jurisdictional. Rather, the rule is a statute of limitation — or simply a deadline — that is generally subject to the defenses of waiver, estoppel, and equitable tolling. See United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985). Having determined the BAP erred in its legal conclusion, and that the bankruptcy court correctly concluded that the time limits in Rule 4007(c) are not jurisdictional, we must next determine whether the bankruptcy court properly used its equitable power by allowing Nardei to file his untimely objection. We review the bankruptcy court’s use of its equitable power for an abuse of discretion. See Isaacman, 26 F.3d at 633. “We will find an abuse of discretion only upon a definite and firm conviction that the district court committed a clear error of judgment.” In re Kisseberth, 273 F.3d 714, 721 (6th Cir.2001). There are five factors that should be considered when deciding to apply the doctrine of equitable tolling: “The factors are: (1) lack of actual" } ]

[ { "docid": "10787893", "title": "", "text": "available to a debtor in bankruptcy and a debtor outside of bankruptcy. Id. at 606. Finding that § 600.5451 precluded such geographic uniformity, and was thus unconstitutional, the BAP declined to consider the bankruptcy court’s Supremacy Clause analysis. Id. The State of Michigan timely appealed the BAP’s judgment to this Court. II. ANALYSIS In reviewing cases appealed from the BAP, we focus our review on the bankruptcy court’s decision. Nardei v. Maughan (In re Maughan), 340 F.3d 337, 341 (6th Cir.2003). In doing so, findings of facts are reviewed for clear error, whereas conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). Where, as here, a statute is challenged as unconstitutional, we construe the statute to avoid constitutional infirmity when “fairly possible.” Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir.1991) (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)). A. The Power to Pass Bankruptcy Legislation As an initial matter, the parties disagree on which entities are vested with the power to pass laws directly affecting the bankruptcy process. The Trustee argues that by virtue of its application solely to debtors in bankruptcy, Michigan’s bankruptcy-specific exemption statute is a “bankruptcy law.” A general exemption statute, on the other hand, is a “non-bankruptcy law” because all debtors, regardless of bankruptcy status, may take advantage of it to shield assets from creditors. The “uniform Laws” language of the Bankruptcy Clause, the Trustee contends, endows Congress with the exclusive authority to pass bankruptcy laws, and Michigan overstepped its bounds when it passed § 600.5451. In support of his exclusivity argument, the Trustee directs our attention to language in Hood describing the original understanding of the Bankruptcy Clause: “As it was initially understood, the Bankruptcy Clause represented the states’ total grant of their power to legislate on bankruptcy. ... The authority was understood to be exclusive because any lesser grant would have defeated the grant’s original purpose.” Hood, 319 F.3d at 764. Such a system would permit the bankruptcy process to rise “above individual states’ interests.” Id." }, { "docid": "10787891", "title": "", "text": "Stewart, 705 F.2d 159 (6th Cir.1983), for the proposition that states have concurrent authority to promulgate laws governing exemptions applicable in bankruptcy cases. Jones, at 428 B.R. The bankruptcy court suggested that Rhodes was at odds with another of our decisions, Hood v. Tennessee Student Assistance Corp., 319 F.3d 755 (6th Cir.2003), aff'd on other grounds, 541 U.S. 440, 124 S.Ct. 1905, 158 L.Ed.2d 764 (2004), over whether Congress retained exclusive authority to implement bankruptcy laws. Jones, 428 B.R. at 727. After conducting a lengthy inquiry into the history of the “uniform Laws” language of the Constitution’s Bankruptcy Clause, and taking into account the binding effect of Rhodes on our later decision in Hood, the bankruptcy court adopted the reasoning set forth in Rhodes to hold that Michigan’s concurrent authority appropriately permitted § 600.5451’s enactment. Id. The bankruptcy court also concluded that the law at issue here, § 600.5451(l)(n), was not in actual conflict with the system provided for by the Bankruptcy Code. Id. The bankruptcy court’s decision, however, conflicted with other decisions from that district that had invalidated § 600.5451. See In re Pon tins, 421 B.R. 814 (Bankr.W.D.Mich.2009); In re Wallace, 347 B.R. 626 (Bankr. W.D.Mich.2006). The Trustee appealed to the United States Bankruptcy Appellate Panel of the Sixth Circuit (“BAP”), at which point the State of Michigan moved to intervene in support of Schafer’s position. The BAP granted the motion, but nonetheless reversed the bankruptcy court and found the bankruptcy-specific exemption statute unconstitutional, Schafer, 455 B.R. at 591. The BAP relied in part on our decision in Hood to hold that, in general, Congress has exclusive authority to promulgate bankruptcy laws. Rhodes, the BAP held, stood for the proposition that states have concurrent jurisdiction in the area of bankruptcy exemptions, but only because Congress affirmatively delegated that power; the power to create a bankruptcy-specific exemption statute was, according to the BAP, outside the scope of that delegation. Id. at 603. The BAP further held that even if such a power were within the scope of the delegation, the Constitution’s Bankruptcy Clause requires “geographic uniformity” between the exemptions" }, { "docid": "10787892", "title": "", "text": "district that had invalidated § 600.5451. See In re Pon tins, 421 B.R. 814 (Bankr.W.D.Mich.2009); In re Wallace, 347 B.R. 626 (Bankr. W.D.Mich.2006). The Trustee appealed to the United States Bankruptcy Appellate Panel of the Sixth Circuit (“BAP”), at which point the State of Michigan moved to intervene in support of Schafer’s position. The BAP granted the motion, but nonetheless reversed the bankruptcy court and found the bankruptcy-specific exemption statute unconstitutional, Schafer, 455 B.R. at 591. The BAP relied in part on our decision in Hood to hold that, in general, Congress has exclusive authority to promulgate bankruptcy laws. Rhodes, the BAP held, stood for the proposition that states have concurrent jurisdiction in the area of bankruptcy exemptions, but only because Congress affirmatively delegated that power; the power to create a bankruptcy-specific exemption statute was, according to the BAP, outside the scope of that delegation. Id. at 603. The BAP further held that even if such a power were within the scope of the delegation, the Constitution’s Bankruptcy Clause requires “geographic uniformity” between the exemptions available to a debtor in bankruptcy and a debtor outside of bankruptcy. Id. at 606. Finding that § 600.5451 precluded such geographic uniformity, and was thus unconstitutional, the BAP declined to consider the bankruptcy court’s Supremacy Clause analysis. Id. The State of Michigan timely appealed the BAP’s judgment to this Court. II. ANALYSIS In reviewing cases appealed from the BAP, we focus our review on the bankruptcy court’s decision. Nardei v. Maughan (In re Maughan), 340 F.3d 337, 341 (6th Cir.2003). In doing so, findings of facts are reviewed for clear error, whereas conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). Where, as here, a statute is challenged as unconstitutional, we construe the statute to avoid constitutional infirmity when “fairly possible.” Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir.1991) (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)). A. The Power to Pass Bankruptcy Legislation As an initial matter, the parties disagree on which entities are vested" }, { "docid": "10787908", "title": "", "text": "states lost such power. Moyses, 186 U.S. at 187, 22 S.Ct. 857. Moyses, which upheld the 1898 Bankruptcy Act, answered whether the adoption of state exemption schemes made the Bankruptcy Act invalid for want of uniformity. The Moyses Court ultimately held that a bankruptcy exemption system “is, in the constitutional sense, uniform throughout the United States, when the trustee takes in each state whatever would have been available to the creditor if the bankrupt[cy] law had not been passed.” Moyses, 186 U.S. at 190, 22 S.Ct. 857. The Trustee argues, and the BAP held, that this language establishes § 600.5451’s infirmity. According to the Trustee, “[t]he bankruptcy-specific exemption statute fails the ‘geographic’ uniformity test by not affording a trustee in bankruptcy the same opportunities as a creditor or receiver outside of bankruptcy.” Schafer, 455 B.R. at 606. This argument fails on multiple levels. First, the portion of Moyses that the BAP and the Trustee latch onto focuses on whether federal bankruptcy law may recognize exemptions permitted by the various states even though the states’ exemptions schemes are not uniform with one another. Two sentences prior to the passage on which the Trustee relies, the Supreme Court stated that “[i]t is quite proper ... to confine [federal bankruptcy law’s] operation to such property as other legal process could reach.” Moyses, 186 U.S. at 190, 22 S.Ct. 857. The Moyses Court was not addressing whether bankruptcy and non-bankruptcy debtors must be treated alike, but rather whether a scheme whereby bankruptcy debtors in different states enjoy different exemptions is ultimately proper. Second, in Moyses the Supreme Court did not hold that a bankruptcy exemption scheme is uniform in the constitutional sense only if the trustee takes in each state whatever would have been available if the bankruptcy law had not been passed. Rather, the Supreme Court held that “[t]he laws passed on the subject [of bankruptcy] must ... be uniform throughout the United States, but that uniformity is geographical, and not personal,” and further stated that “we do not think that the provision of the [Bankruptcy Act] as to exemptions is incompatible with" }, { "docid": "12287694", "title": "", "text": "the record supports that bankruptcy court’s award of a nondischargeable judgment in the amount of $20,000. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Western District of Tennessee has authorized appeals to the BAP. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). Conclusions of law are reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). “De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (6th Cir. BAP 1998) (citation omitted). Determinations of dischargeability under 11 U.S.C. § 523 are conclusions of law reviewed de novo. Hart v. Molino (In re Molino), 225 B.R. 904, 906 (6th Cir. BAP 1998). However, “[t]he Panel must affirm the underlying factual determinations unless they are clearly erroneous.” Id. (citing National City Bank v. Plechaty (In re Plechaty), 213 B.R. 119, 121 (6th Cir. BAP 1997)). See also Sorah v. Sorah (In re Sorah), 163 F.3d 397, 400 (6th Cir.1998). “A finding of fact is clearly erroneous ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” R.D.F. Developments Inc. v. Sysco Corp. (In re R.D.F. Developments Inc.), 239 B.R. 336, 338-39 (6th Cir. BAP 1999) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948))). III.FACTS On December 23, 1997," }, { "docid": "12662845", "title": "", "text": "OPINION AUG, Chief Judge. The chapter 13 debtor, Stephanie Ruehle (the “Debtor”), appeals the bankruptcy court’s Memorandum of Decision granting the Motion to Vacate Discharge as to Educational Credit Management Corporation (the “Motion to Vacate”). The confirmation order was vacated pursuant to Federal Rule of Civil Procedure 60(b)(4), made applicable in bankruptcy cases by Federal Rule of Bankruptcy Procedure 9024. The bankruptcy court granted the Motion to Vacate on the basis that Educational Credit Management Corporation (“ECMC”) was denied due process of law by the Debtor’s discharge of her student loan through her plan rather than by filing a separate adversary proceeding. We affirm the bankruptcy court’s well-reasoned decision. I.ISSUES ON APPEAL The issue in this appeal is whether the bankruptcy court erred in vacating its order confirming the Debtor’s chapter 13 plan. In our analysis, we must consider whether the provisions of 11 U.S.C. § 1327(a) providing that a confirmed plan is binding on the debtor and creditor are trumped by ECMC’s due process rights set forth in the Fifth Amendment to the United States Constitution. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit (the “BAP”) has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the BAP. A “final order” of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). The Panel reviews the bankruptcy court’s conclusions of law de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629 (6th Cir.1994). “A de novo review allows the reviewing panel to examine the interpretation and application of the relevant statutes independent of the determination of the bankruptcy court.” Peerless Ins. Co. v. Miller (In re Miller), 228 B.R. 399, 400 (6th Cir. BAP 1999) (citation omitted). “Whether a Chapter" }, { "docid": "8737867", "title": "", "text": "discharge in this case would be a substantial abuse of the bankruptcy system. The BAP affirmed on October 10, 2002, and this appeal followed. II. A. Standard of Review “We independently review the decision of the bankruptcy court that comes to us by way of appeal from a Bankruptcy Appellate Panel.” Nardei v. Maughan (In re Maughan), 340 F.3d 337, 341 (6th Cir.2003). The bankruptcy court’s findings of fact are reviewed for clear error, while its conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994); Rembert v. AT & T Universal Card Servs. (In re Rembert), 141 F.3d 277, 280 (6th Cir.1998). Mixed questions are to be separated into their component parts and reviewed under the appropriate standard. Mayor of Baltimore v. W. Va. (In re Eagle-Picher Indus., Inc.), 285 F.3d 522, 527 (6th Cir.), cert. denied, 537 U.S. 880, 123 S.Ct. 90, 154 L.Ed.2d 137 (2002). “Finally, the bankruptcy court’s equitable determinations are reviewed for an abuse of discretion.” Id. (citations omitted). Debtors contend that the BAP erred in applying an abuse of discretion standard to the ultimate question of whether there was substantial abuse warranting dismissal, without resolving the question of whether the issue should be reviewed de novo or for an abuse of discretion. While it appears that the BAP actually concluded that it would affirm under either standard, ours is an independent review of the bankruptcy court’s decision. Several circuits have stated, albeit without discussion or analysis, that whether the facts as found by the bankruptcy court constitute substantial abuse is a question of law that is to be reviewed de novo. See Stewart v. United States Trustee (In re Stewart), 175 F.3d 796, 803 (10th Cir.1999); Kornfield v. Schwartz (In re Kornfield), 164 F.3d 778, 783 (2d Cir.1999); First USA v. Lamanna (In re Lamanna), 153 F.3d 1, 3 (1st Cir.1998); Green v. Staples (In re Green), 934 F.2d 568, 570 (4th Cir.1991). On the other hand, the Eighth Circuit BAP has held that dismissals for substantial abuse are to be reviewed for abuse of" }, { "docid": "18152195", "title": "", "text": "a final order. Archie v. Lanier, 95 F.3d 438, 442 (6th Cir.1996); Kelly, Howe & Scott v. Giguere (In re Giguere), 188 B.R. 486, 488 (D.R.I.1995). However, the panel may grant leave to appeal absent a motion for leave to appeal, if a notice of appeal is timely filed. See United States v. Eggleston Works Loudspeaker Co. (In re Eggleston Works Loudspeaker Co.), 253 B.R. 519, 521 (6th Cir. BAP 2000). The Panel granted leave to appeal on December 3, 2002. Conclusions of law are reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). “De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (6th Cir. BAP 1998) (citation omitted). III.FACTS The Appellants, Christine A. Voinovich, Deborah Voinovich McCann, Paul M. Voi-novich, and Vocon Design, Inc., are all offieers/directors/insiders of The V Companies, Inc. and V-S Architects, Inc., the Debtors in this case, and are some of the defendants in the above-referenced adversary proceeding. The Debtors were involved in construction and project management businesses. In a prior opinion approving the conversion of the Debtors’ cases to cases under chapter 7, the bankruptcy court gave an in-depth description of the relationships between the Debtors and their various affiliates, officers, directors and shareholders, including the Appellants. See In re v. Companies, 274 B.R. 721 (Bankr.N.D.Ohio 2002). The Debtors are controlled by Paul V. Voinovich who is the spouse of Appellant Christine A. Voinovich, and the father of Appellants Deborah Voinovich McCann and Paul M. Voinovich. Further, Christine A. Voinovich is the sole shareholder of Appellant Vocon Design, Inc. which is operated by her children, Deborah Voinovich McCann and Paul M. Voinovich. Id. at 728-29, 736. The bankruptcy cases (jointly administered) were originally filed under Chapter 11 on January 7, 2000. The Debtors operated the companies as debtors-in-possession for over two years. On May 2, 2001, the U.S. Trustee filed a motion to convert to Chapter 7. While the motion was pending, the Board sought leave" }, { "docid": "226522", "title": "", "text": "United States Constitution and statutes enacted pursuant thereto.”). Other courts have concluded that bankruptcy-specific exemption statutes are constitutional. See Sheehan v. Peveich (In re Peveich), 574 F.3d 248 (4th Cir.2009), aff'g, In re Morrell, 394 B.R. 405 (Bankr. N.D.W.Va.2008) (reasoning that West Virginia’s bankruptcy-only exemption statute, which accorded debtors in bankruptcy five times the homestead exemption accorded under federal law, was consistent with the goal of the “opt-out” provision permitting states to set exemption levels appropriate to the locale and did not frustrate the purpose of the Bankruptcy Code; therefore, it was not valid under the Supremacy Clause); Sticka v. Applebaum (In re Ap-plebaum), 422 B.R. 684 (9th Cir. BAP 2009) (holding that California’s bankruptcy-specific exemption statute is not preempted by the Bankruptcy Code simply because the state exemptions differ from the federal exemptions and does not violate the uniformity requirement because the statute applies equally to all debtors and creditors in bankruptcy); In re Brown, No. 06-30199, 2007 WL 2120380 (Bankr.ND.N.Y. July 23, 2007), aff'd, CFCU Cmty. Credit Union v. Brown, No. 07-cv-0856, 2007 WL 4560671 (N.D.N.Y. Dec. 18, 2007) (holding that New York’s bankruptcy specific exemption statute is not a violation of the Supremacy Clause because it did not conflict with the federal exemptions in § 522(d)); In re Shumaker, 124 B.R. 820, 826 (Bankr.D.Mont.1991) (declining to follow Lennen and Mata in considering the challenge to a Montana statute exempting Individual Retirement Accounts only for bankruptcy debtors; holding that the bankruptcy-specific statute did not violate the doctrine of geographic uniformity or equal protection and was not an improper delegation of power to the states). The issue of whether an exemption statute that operates only in the event of a bankruptcy proceeding is unconstitutional under the Bankruptcy Clause or Supremacy Clause of the United States Constitution, has also been discussed by legal commentators. See 4 Collier on Bankruptcy ¶ 522.02[4], at 522-20 (Alan N. Resnick & Henry J. Sommer eds., 16th ed rev. 2009); Winnifred P. Boylan & Melanie R. Beyers, The Trek of Michigan Exemptions in the Universe of Bankruptcy, 22 Mich. Real Prop. Rev. 85 (Summer 2006);" }, { "docid": "10787901", "title": "", "text": "who file for bankruptcy.” Schafer, 455 B.R. at 604. Thus, the BAP asserts, the power to forbid is not the same as the power to create, id. at 604, and a bankruptcy-specific statute like § 600.5451 is outside the scope of Congress’s limited delegation of power. But this interpretation misunderstands the concept of concurrent jurisdiction in the area of bankruptcy exemptions, and imputes, without a basis to do so, a limit onto a state’s power to act. As the Rhodes Court explained, states are permitted to act in this arena, with the proviso that the Supremacy Clause and the doctrine of preemption will invalidate such laws if necessary. 705 F.2d at 163. In reaching its conclusion, the BAP analyzed a number of arguments set forth by other courts that had concluded that because § 522(b)(3)(A) allowed debtors to exempt property under “[sjtate or local law that is applicable,” Congress authorized states to pass statutes like § 600.5451. Schafer, 455 B.R. at 603. The BAP disagreed, finding that such arguments “conflate[] two different rights: that is, the debtor’s right to exempt property under applicable state law, with the states’ right to enact legislation which must satisfy Constitutional requirements.” Id. at 604. Put simply, the BAP contends that Congress’s enactment of § 522(b) was a grant of power to debtors, and not a general grant of power to states. Therefore, “[t]he states’ ‘concurrent jurisdiction’ is limited to ‘opting-out’ or passing laws which apply to all state residents.” Id. That § 522(b)’s ambit is so cabined finds no basis in our precedent. To the contrary, Rhodes speaks to a state’s power to enact particular legislation. Rhodes, 705 F.2d at 163 (“Congress ... vested in the states the ultimate authority to determine their own bankruptcy exemptions [and § 522(b)(2) ] encompasses no facial restrictions upon the states’ authority to opt-out.”). Other courts have found that such a construction of § 522(b)(2) is improper, given that other parts of the Bankruptcy Code refer to state or local law, yet it is without dispute that in those sections it would be improper for states to legislate:" }, { "docid": "18152194", "title": "", "text": "(2000). The Appellants also contend that the bankruptcy court erred in substituting the Trustee as plaintiff in the adversary proceeding. Their position was based on their contention that the Trustee could not be substituted for a party whose standing to sue was granted in error. In light of our decision concerning the issue of derivative standing, we need not address this issue. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the BAP. The “final order” of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ends the litigation on the merits and leaves nothing for the courts to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (internal quotations and citations omitted). The denial of a motion to dismiss is not a final order. Archie v. Lanier, 95 F.3d 438, 442 (6th Cir.1996); Kelly, Howe & Scott v. Giguere (In re Giguere), 188 B.R. 486, 488 (D.R.I.1995). However, the panel may grant leave to appeal absent a motion for leave to appeal, if a notice of appeal is timely filed. See United States v. Eggleston Works Loudspeaker Co. (In re Eggleston Works Loudspeaker Co.), 253 B.R. 519, 521 (6th Cir. BAP 2000). The Panel granted leave to appeal on December 3, 2002. Conclusions of law are reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). “De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (6th Cir. BAP 1998) (citation omitted). III.FACTS The Appellants, Christine A. Voinovich, Deborah Voinovich McCann, Paul M. Voi-novich, and Vocon Design, Inc., are all offieers/directors/insiders of The V Companies, Inc. and V-S Architects, Inc., the Debtors in this case, and are some of the" }, { "docid": "8737866", "title": "", "text": "Schedule I — Current Income of Individual Debtor(s) shows a voluntary monthly contribution of $460.00 to William Behlke’s employer sponsored 401K plan. 14. Debtors’ gross income for 1999 was $93,116.00 and their gross income for 2000 was $93,036.00. 15. For tax year 2000, debtors received an income tax refund of $2,313.00. 16. Debtors are eligible for relief under chapter 13 of the Bankruptcy Code. There was no dispute that the debts in this case were primarily unsecured consumer debts. As the bankruptcy court observed, this court has determined that substantial abuse can be predicated on a showing of either a lack of honesty or a want of need. In re Krohn, 886 F.2d 123, 126 (6th Cir.1989). The Trustee did not rely on a lack of honesty, but maintained that the debtors were not “needy.” Examining this question, the bankruptcy court found that the voluntary 401K contributions should be included in disposable income; that, including those contributions, debtors had an ability to pay out of future income; and that, taken with the other Krohn factors, discharge in this case would be a substantial abuse of the bankruptcy system. The BAP affirmed on October 10, 2002, and this appeal followed. II. A. Standard of Review “We independently review the decision of the bankruptcy court that comes to us by way of appeal from a Bankruptcy Appellate Panel.” Nardei v. Maughan (In re Maughan), 340 F.3d 337, 341 (6th Cir.2003). The bankruptcy court’s findings of fact are reviewed for clear error, while its conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994); Rembert v. AT & T Universal Card Servs. (In re Rembert), 141 F.3d 277, 280 (6th Cir.1998). Mixed questions are to be separated into their component parts and reviewed under the appropriate standard. Mayor of Baltimore v. W. Va. (In re Eagle-Picher Indus., Inc.), 285 F.3d 522, 527 (6th Cir.), cert. denied, 537 U.S. 880, 123 S.Ct. 90, 154 L.Ed.2d 137 (2002). “Finally, the bankruptcy court’s equitable determinations are reviewed for an abuse of discretion.” Id. (citations omitted). Debtors contend" }, { "docid": "10787888", "title": "", "text": "OPINION COLE, Circuit Judge. The Constitution’s Bankruptcy Clause grants Congress the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States[,]” U.S. Const, art. I, § 8, cl. 4, and its Supremacy Clause makes the laws that Congress passes pursuant to that power the “supreme Law of the Land[,]” U.S. Const, art. VI, cl. 2. The question before this Court is whether, in light of those provisions, a state may enact an exemption scheme that applies only to debtors in bankruptcy. The bankruptcy trustee argues that a state may not, that such a law would violate both the Bankruptcy Clause and the Supremacy Clause. The debtor and the State of Michigan disagree. They argue that the interpretation given to the phrase “uniform Laws” by both the Supreme Court and this Court permits states to act in the arena of bankruptcy exemptions even if they do so by making certain exemptions available only to debtors in bankruptcy, and that such exemptions schemes are not invalidated by the Supremacy Clause. We agree, and thus AFFIRM the judgment of the bankruptcy court and hold that Michigan’s bankruptcy-specific exemption statute, Mich. Comp. Laws § 600.5451, is constitutionally sound. I. BACKGROUND None of the underlying facts are in dispute. In March 2009, Steven Schafer, the debtor-appellant, filed a voluntary petition under Chapter 7 of the Bankruptcy Code. Richardson v. Schafer (In re Schafer), 455 B.R. 590, 592 (6th Cir. BAP 2011). Michigan law permits debtors in bankruptcy to choose their exemptions from those set forth in 11 U.S.C. § 522(d), from a set of general exemptions available to all Michigan residents irrespective of their bankruptcy status, Mich. Comp. Laws § 600.6023, or from a list of exemptions available solely to debtors in bankruptcy, Mich. Comp. Laws § 600.5451. Schafer elected to claim a homestead exemption under the last of these, which permits bankruptcy debtors — and only bankruptcy debtors — to exempt up to $30,000 of the value of the home, or up to $45,000 if the debtor is over the age of 65 or disabled. Mich. Comp. Laws § 600.5451(l)(n)." }, { "docid": "10787906", "title": "", "text": "§ 13-54-104 violates the constitution’s uniformity requirement for bankruptcy laws because it creates a bankruptcy exemption which is not available to other Colorado debtors. This argument is meritless. [It] confuse[s] the geographical uniformity doctrine with the well-established principle that states may pass laws which do not conflict with the federal scheme.... In this case, we have no conflict because 11 U.S.C. § 522 expressly delegates to states the power to create bankruptcy exemptions.”) (internal citations omitted). For the reasons stated below, we reach the same conclusion. The bankruptcy court determined that the uniformity requirement applied only to federal enactments, and was thus not relevant to the instant inquiry. Jones, 428 B.R. at 729 n. 9. The BAP disagreed, holding that “[a] state law which applies only to debtors in bankruptcy must be analyzed under the uniformity requirement of the Bankruptcy Clause.” Schafer, 455 B.R. at 601. Implicit in this argument is the notion that § 600.5451 was passed pursuant to a delegation of Congress’s Bankruptcy Clause power, so any resultant laws must be bound in the same way as if passed by the federal legislature. But any such delegation would have been pursuant to 11 U.S.C. § 522(b)(2), and we have previously, and repeatedly, held that § 522(b)(2) “is not an unconstitutional delegation of congressional legislative power but rather is merely a recognition of the concurrent legislative power of the state legislatures to enact laws governing bankruptcy exemptions.” Storer, 58 F.3d at 1129 (quoting Rhodes, 705 F.2d at 164). Regardless, we need not decide whether the Bankruptcy Clause’s introductory phrase applies to state enactments, because even if it does, § 600.5451 meets the requirements of the Bankruptcy Clause. 1. Development of uniformity jurisprudence Prior to Congress’s decision to adopt a uniform national framework for bankrupt cy, states were understood to have power to pass insolvency legislation. “So long as there is no national bankrupt act, each state has full authority to pass insolvent laws binding persons and property within its jurisdiction.... ” Brown v. Smart, 145 U.S. 454, 457, 12 S.Ct. 958, 36 L.Ed. 773 (1892). Upon national action, however," }, { "docid": "12287693", "title": "", "text": "OPINION RHODES, Chief Judge. The bankruptcy court entered a judgment that obligations in the amount of $20,000 that the debtor, Bryant Bailey, owes to Kimberly Bailey are in the nature of support and are thus nondischargeable pursuant to 11 U.S.C. § 523(a)(5). The Panel agrees with the bankruptcy court that the obligations identified in the bankruptcy court’s judgment are in the nature of support and therefore nondischargeable. Accordingly, that aspect of the bankruptcy court’s judgment is AFFIRMED. However, the record is insufficient to establish the basis on which the bankruptcy court determined that the amount of the nondis-chargeable debt should be $20,000. Accordingly, that aspect of the judgment is VACATED and the case is REMANDED for additional factual findings. In the alternative, the bankruptcy court may conduct any further proceedings that it deems necessary to determine an appropriate judgment. I.ISSUES ON APPEAL The issues on appeal are whether the obligations that Bryant Bailey owes to Kimberly Bailey pursuant to their divorce proceedings are in the nature of support under 11 U.S.C. § 523(a)(5) and whether the record supports that bankruptcy court’s award of a nondischargeable judgment in the amount of $20,000. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Western District of Tennessee has authorized appeals to the BAP. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). Conclusions of law are reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). “De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (6th Cir. BAP 1998) (citation omitted)." }, { "docid": "10787900", "title": "", "text": "statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute.” Id. at 240-41, 109 S.Ct. 1026. The plain language of § 522(b) demonstrates unambiguously that “Congress has not seen fit to restrict the authority delegated to the states by requiring that state exemptions apply equally to bankruptcy and non-bankruptcy cases,” such that “we are without authority to impose such a requirement.” Sheehan v. Peveich, 574 F.3d 248, 252 (4th Cir.2009). Statutes ought to be construed as constitutional when fairly possible, Eubanks, 937 F.2d at 1122, and, for the reasons explained below, an interpretation of § 522 that permits states to enact bankruptcy-specific exemptions schemes does not run afoul of either the Bankruptcy or Supremacy Clauses of the Constitution. The BAP contended that reliance on Rhodes and Storer is not enough to legitimate § 600.5451, given that those cases do “not lead to the conclusion that states are allowed to take the affirmative step of enacting legislation that applies only to state residents who file for bankruptcy.” Schafer, 455 B.R. at 604. Thus, the BAP asserts, the power to forbid is not the same as the power to create, id. at 604, and a bankruptcy-specific statute like § 600.5451 is outside the scope of Congress’s limited delegation of power. But this interpretation misunderstands the concept of concurrent jurisdiction in the area of bankruptcy exemptions, and imputes, without a basis to do so, a limit onto a state’s power to act. As the Rhodes Court explained, states are permitted to act in this arena, with the proviso that the Supremacy Clause and the doctrine of preemption will invalidate such laws if necessary. 705 F.2d at 163. In reaching its conclusion, the BAP analyzed a number of arguments set forth by other courts that had concluded that because § 522(b)(3)(A) allowed debtors to exempt property under “[sjtate or local law that is applicable,” Congress authorized states to pass statutes like § 600.5451. Schafer, 455 B.R. at 603. The BAP disagreed, finding that such arguments “conflate[] two different rights: that is," }, { "docid": "23315887", "title": "", "text": "OPINION STEVEN RHODES, Bankruptcy Appellate Panel Judge. This appeal requires the Panel to decide whether in the means test of 11 U.S.C. § 707(b)(2)(A)(ii)(I), a debtor may deduct an “ownership expense” for a vehicle that is subject to neither secured debt nor a lease. For the reasons stated herein, the Panel concludes that the debtor is entitled to that expense deduction and affirms the decision of the bankruptcy court. I. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Middle District of Tennessee has authorized appeals to the BAP. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). The only issue on appeal is whether a debtor may claim the “vehicle ownership expense” on the means test form for a vehicle that is not encumbered by debt or subject to a lease. This is a legal issue which is reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). “De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (6th Cir. BAP 1998) (citation omitted). II. FACTS The facts of this case are not in dispute. The Kimbros filed a voluntary chapter 13 bankruptcy petition on June 7, 2007. Their yearly income exceeded the state median income for a family of their size. The trustee objected to the Kimbros’ chapter 13 plan, asserting that it did not comply with 11 U.S.C. § 1325(b). Section 1325(b) provides: If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not" }, { "docid": "10787905", "title": "", "text": "on the subject of Bankruptcies throughout the United States[.J” U.S. Const, art. I, § 8, cl. 4. The “uniform Laws” language serves as a substantive limit on statutory acts, but is not meant to act as a “straightjacket that forbids” distinguishing among different classes of debtors. Ry. Labor Execs.’ Ass’n v. Gibbons, 455 U.S. 457, 469, 102 S.Ct. 1169, 71 L.Ed.2d 335 (1982). We have previously rejected formalistic approaches to uniformity in bankruptcy, because doing so “overlooks the flexibility inherent in the constitutional provision .... ” Schultz v. United States, 529 F.3d 343, 354 (6th Cir.2008) (quoting Blan-chette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 158, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)). The only decision by a federal court of appeals that has addressed the uniformity requirement of the Bankruptcy Clause in the context of a state’s bankruptcy-specific exemption statute concluded that the statute did not violate the uniformity requirement. See Kulp v. Zeman (In re Kulp), 949 F.2d 1106, 1109 n. 3 (10th Cir.1991) (“Defendants ... argue in the alternative that Colo.Rev.'Stat. § 13-54-104 violates the constitution’s uniformity requirement for bankruptcy laws because it creates a bankruptcy exemption which is not available to other Colorado debtors. This argument is meritless. [It] confuse[s] the geographical uniformity doctrine with the well-established principle that states may pass laws which do not conflict with the federal scheme.... In this case, we have no conflict because 11 U.S.C. § 522 expressly delegates to states the power to create bankruptcy exemptions.”) (internal citations omitted). For the reasons stated below, we reach the same conclusion. The bankruptcy court determined that the uniformity requirement applied only to federal enactments, and was thus not relevant to the instant inquiry. Jones, 428 B.R. at 729 n. 9. The BAP disagreed, holding that “[a] state law which applies only to debtors in bankruptcy must be analyzed under the uniformity requirement of the Bankruptcy Clause.” Schafer, 455 B.R. at 601. Implicit in this argument is the notion that § 600.5451 was passed pursuant to a delegation of Congress’s Bankruptcy Clause power, so any resultant laws must be bound in" }, { "docid": "17719794", "title": "", "text": "regarding the fair market value of the Debtors’ residence is clearly erroneous. The second is whether the Debtors may avoid the Appellants’ judicial lien on their residence under 11 U.S.C. § 522(f). II. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the BAP. The parties have consented to the transfer of this appeal to the BAP from the district court. A “final order” of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). The bankruptcy court’s order permitting the lien avoidance is a final order because it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). The bankruptcy court’s determination of the value of residential property is a finding of fact reviewed under the clearly erroneous standard. Fed. R. Bankr.P. 8013; Fed.R.Civ.P. 52. A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” In re Mathews, 209 B.R. 218, 219 (6th Cir. BAP 1997) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). The bankruptcy court’s determination regarding the value of property is a factual finding. Conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629 (6th Cir.1994). De novo means deciding the issue as if it had not been heard before. Mapother & Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472. No deference is given to the trial court’s conclusions of law. Razavi v. Commissioner, 74 F.3d 126 (6th Cir.1996). III. FACTS On June 6, 1997, Anthony and Elvira Falvo" }, { "docid": "10787907", "title": "", "text": "the same way as if passed by the federal legislature. But any such delegation would have been pursuant to 11 U.S.C. § 522(b)(2), and we have previously, and repeatedly, held that § 522(b)(2) “is not an unconstitutional delegation of congressional legislative power but rather is merely a recognition of the concurrent legislative power of the state legislatures to enact laws governing bankruptcy exemptions.” Storer, 58 F.3d at 1129 (quoting Rhodes, 705 F.2d at 164). Regardless, we need not decide whether the Bankruptcy Clause’s introductory phrase applies to state enactments, because even if it does, § 600.5451 meets the requirements of the Bankruptcy Clause. 1. Development of uniformity jurisprudence Prior to Congress’s decision to adopt a uniform national framework for bankrupt cy, states were understood to have power to pass insolvency legislation. “So long as there is no national bankrupt act, each state has full authority to pass insolvent laws binding persons and property within its jurisdiction.... ” Brown v. Smart, 145 U.S. 454, 457, 12 S.Ct. 958, 36 L.Ed. 773 (1892). Upon national action, however, states lost such power. Moyses, 186 U.S. at 187, 22 S.Ct. 857. Moyses, which upheld the 1898 Bankruptcy Act, answered whether the adoption of state exemption schemes made the Bankruptcy Act invalid for want of uniformity. The Moyses Court ultimately held that a bankruptcy exemption system “is, in the constitutional sense, uniform throughout the United States, when the trustee takes in each state whatever would have been available to the creditor if the bankrupt[cy] law had not been passed.” Moyses, 186 U.S. at 190, 22 S.Ct. 857. The Trustee argues, and the BAP held, that this language establishes § 600.5451’s infirmity. According to the Trustee, “[t]he bankruptcy-specific exemption statute fails the ‘geographic’ uniformity test by not affording a trustee in bankruptcy the same opportunities as a creditor or receiver outside of bankruptcy.” Schafer, 455 B.R. at 606. This argument fails on multiple levels. First, the portion of Moyses that the BAP and the Trustee latch onto focuses on whether federal bankruptcy law may recognize exemptions permitted by the various states even though the states’ exemptions" } ]

[ { "docid": "5126964", "title": "", "text": "petitioner contends for are more violently assailed from without than from within. The very name of the rights which petitioner champions implies a limitation on their use: Civil rights have always been subject to military exigency. There is therefore no reason to superimpose judicial review upon the appeal allowed by the Selective Training and Service Act. Counsel for petitioner cites cases which hold that courts will protect civil rights against arbitrary action by executive authorities. Such cases refer to such arbitrary conduct as “abuse of discretion”, “fraudulent or capricious conduct”, “ultra vires acts,” etc. No doubt there are many remedies, such as injunction, quo warranto, habeas corpus with writ of certiorari, available to prevent unwarranted conduct by public officers. But courts will not substitute their judgment for the judgment of administrative officers exercised within the grant of their authority. Generally what is within the jurisdiction of the administrative agency is beyond the jurisdiction of the courts; it is only when acts are clearly beyond the grant of administrative authority, that they come within the judicial authority.\" The petitioner here asks this court to review the facts presented to the Boards and to substitute its judgment for theirs as to the classification in which he is to be placed. This court might disagree with the interpretation of the law made by the Boards in this case, or it might disagree with the different interpretation of the law made “By Authority of the President” in Appeal No. 14 from the decision of Board of Appeal No. 2, Local Board No. 18, Franklin County, Ohio, April 18, 1941; but it would be powerless to change either decision. Since the Boards acted within their grant of authority, this court, in the absence of specific authority to do so, cannot review the action of the Boards. The cases which arose with reference to the Draft Act of 1917, 50 U.S.C.A. Appendix § 201 et seq., support this view. Ex parte Platt, D.C., 253 F. 413; Angelus v. Sullivan, 2 Cir., 246 F. 54; In re Kitzerow, D.C., 252 F. 865; Boitano v. District Board, D.C.," } ]

[ { "docid": "3119968", "title": "", "text": "importance of the question involved, that a board, similar to those created under the Selective Training and Service Act, must be deemed to be a quasi-judicial body and exercises judicial functions and that a District Court of the United States is its superior tribunal, an assumption quite unjustified by any statutory warrant, none the less a writ of certiorari will not lie to enable a superior court to pass upon, revise or reverse the decision of a lower tribunal as to matters of fact. Allison v. Local Board No. 61, D.C., 43 F.Supp. 896; Shimola v. Local Board No. 42, D.C., 40 F.Supp. 808. Compare United States v. Rauch, supra; In re Kitzerow, D.C., 252 F. 865. We believe that there are no cases to the contrary. The question as to whether Drumheller was a regular or duly ordained minister of religion and, therefore, entitled to exemption from training or service is one of fact. This very question, as we pointed out in United States v. Grieme, supra [128 F.2d 814], is one which “from its very nature, is committed by° the Act to the determination of the competent local draft board.” Section 10(a) (2) of the Selective Training and Service Act, 50 U.S.C.A. Appendix § 310(a) (2), provides that the decisions of the local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. The language employed in Section 10(a) (2) is substantially identical with that used in Section 4 of the Selective Draft Act of 1917, 50 U.S.C.A. Appendix § 204. The Selective Training and Service Act of 1940 (precisely as did the Selective Draft Act of 1917) contemplates a rapid disposition by selective service boards of the eligibility and availability of the male citizens of this country for military service. We think that nothing could prove more disruptive to the smooth functioning of the Selective Training and Service Act than to permit an individual to refuse training or service, meanwhile employing a writ of certiorari to carry his case from his local board through the" }, { "docid": "22240589", "title": "", "text": "v. Baird, D.C.E.D.N.Y., 39 F.Supp. 392, 394; United States ex rel. Errichetti v. Baird, D.C.E.D.N.Y., 39 F.Supp. 388, 391, 392; United States ex rel. Filomio v. Powell, D.C.N.J., 38 F.Supp. 183, 189; Dick v. Tevlin, D.C.S.D.N.Y., 37 F.Supp. 836, 838. A similar rule had been evolved by court decision under the Selective Draft Act of 1917, 50 U.S.C.A. Appendix, § 201 et seq. Arbitman v. Woodside, 4 Cir., 258 F. 441, 442; United States ex rel. Pascher v. Kinkhead, 3 Cir., 250 F. 692, 694; Boitano v. District Board, D.C.N.D.Cal., 250 F. 812, 813. No jurisdiction is conferred upon the courts by the Selective Training and Service Act of 1940 50 U.S.C.A. Appendix, § 301 et seq., to review the findings of local draft boards. Shimola v. Local Board, D.C.N.D.Ohio, 40 F.Supp. 808, 810; Petition of Soberman, D.C.E.D.N.Y., 37 F.Supp. 522, 523. Here again the rule is similar to the construction placed upon the Selective Draft Act of 1917. See Ex parte Hutflis, D.C.W.D.N.Y., 245 F. 798, 799. Nor is the merit of the decision by a local draft board subject to court review upon writ of certiorari. (Allison v. Local Board, D.C.N.D.Cal., 43 F.Supp. 896) or upon writ of habeas corpus. United States ex rel. Troiani v. Heyburn, D.C.E.D.Pa., 245 F. 360, 362. However, a registrant who has been inducted pursuant to the Selective Service Act may, by writ of habeas corpus, obtain a judicial determination as to whether the local draft board acted in an arbitrary and capricious manner or denied the registrant a full and fair hearing. See United States ex rel. Pasciuto v. Baird, supra; United States ex rel. Errichetti v. Baird, supra; Application of Greenberg, D.C.N.J., 39 F.Supp. 13, 16; United States ex rel. Filomio v. Powell, supra, 38 F.Supp. at page 186; Dick v. Tevlin, supra. Whether a registrant is a minister of religion presents a question of fact which, from its very nature, is committed by the Act to the determination of the competent local draft board. Johnson v. United States, 8 Cir., 126 F.2d 242, 247. The only appeal from a finding" }, { "docid": "4174995", "title": "", "text": "the clerk, — much less, by imputation, on the part of the Board itself. Furthermore, appellant did take his appeal in due course; and, in addition to the showing made by his questionnaire, the Boards received, and presumably considered, all the letters and other documents embraced in the Exhibits filed by appellant. The contention of appellant is that this showing conclusively established that he is a minister, both regular and ordained, within the purview of the Selective Service Act, and that in reversing this case the judgment of the courts should be substituted for that of the Boards created by that Act as the final fact-finders under its provision. If error be committed by the Local Board the remedy of appeal is provided; and while, in the last analysis, courts can prevent arbitrary action, if it exist, from being finally effective, “a registrant cannot come to a court for such relief until he has exhausted all available and sufficient administrative remedies”. Johnson v. United States, 8 Cir., 126 F.2d 242, 247. It is true that appellant has exhausted such administrative remedies, but it is the generally accepted rule that, under the Selective Training and Service Act, no review of findings of Local Draft Boards upon any classification or the denial of an exemption is committed to the courts, and relief may be granted the registrant only when the Local Draft Board has acted arbitrarily and capriciously and without substantial evidence. Johnson v. United States, 8 Cir., 126 F.2d 242; Rase v. United States, 6 Cir., 129 F.2d 204; United States v. Grieme, 3 Cir., 128 F.2d 811, and many others. This is in accord with the pronouncement of the Supreme Court that where the decision of a Director is final and conclusive on any specific matter under an Act, it is not subject to judicial review, “at least unless the decision be wholly unsupported by evidence, wholly dependent upon a question of law, or clearly arbitrary or capricious”. Silberschein v. United States, 266 U.S. 221, 45 S.Ct. 69, 69 L.Ed. 256. The Selective Training and Service Act of September 16," }, { "docid": "3444185", "title": "", "text": "not be granted since an appeal had already been had and petitioner had been ordered on March 6th to report for induction on March 16th; on March 25th petitioner was inducted into the Army of the United States at Fort Snelling, Minnesota; on April 1, 1943 the Local Board placed petitioner in Class I-C. Petitioner’s motion to strike out Exhibits “B”, “C”, “D”, “E” and “F”, portions of the return to order to show cause, upon the ground of immateriality is well taken, and in arriving at my conclusion I have disregarded them. Petitioner contends that the action of the Local Board was “arbitrary and capricious” because of its failure to defer him when he was engaged in an agricultural occupation. It appears from the record that for more than two years the Local Board had petitioner’s case before it for consideration, and in passing upon it in its various phases acted in accordance with the provisions of the Selective Service Act and the regulations thereunder. See Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 305(e); Selective Training and Service Act of 1940, as amended, Sec. 5(k); Selective Service Regulations No. 622.25, No. 633.14; No. 626.1(a); No. 626.2; No. 626.3; No. 627.1 to 627.31; No. 627.61 to 627.72; No. 628.1 to 628.7. “Persons obligated to register under the Selective Service Act are not entitled to exemption as a matter of right. The discretion to determine whether certain classes of registrants should be exempted or deferred is reposed by the Act in the President and the boards or agencies which he is further authorized to create for the purpose of administering the Act.” United States v. Grieme, 3 Cir., 128 F.2d 811, 815. It is only when it appears on the face of the record that the action of the Local Board infringed the constitutional rights of the inductee that the courts have the right to interfere, for draft boards are administrative agencies not subject to review by the courts. See Shimola v. Local Board, D.C., 40 F.Supp. 808, 810; Drumheller v. Berks County Local Board, D.C., 43" }, { "docid": "3119969", "title": "", "text": "its very nature, is committed by° the Act to the determination of the competent local draft board.” Section 10(a) (2) of the Selective Training and Service Act, 50 U.S.C.A. Appendix § 310(a) (2), provides that the decisions of the local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. The language employed in Section 10(a) (2) is substantially identical with that used in Section 4 of the Selective Draft Act of 1917, 50 U.S.C.A. Appendix § 204. The Selective Training and Service Act of 1940 (precisely as did the Selective Draft Act of 1917) contemplates a rapid disposition by selective service boards of the eligibility and availability of the male citizens of this country for military service. We think that nothing could prove more disruptive to the smooth functioning of the Selective Training and Service Act than to permit an individual to refuse training or service, meanwhile employing a writ of certiorari to carry his case from his local board through the courts. Drumheller should have delivered himself to the authorities as all citizens of this country in like position are required by law to do. He then could have raised the question by writ of habeas corpus of whether his local board had acted in an arbitrary or capricious manner or denied him a full and fair hearing. He says that for him to deliver himself even into the hands of civilians for civilian labor would be a breach of his covenant with God. We do not question Drumheller’s sincerity in making such a statement, but he is none the less subject to all the laws of the United States which govern other men in their duty to their country. The writ of certiorari will not lie. Accordingly the order of the court below is affirmed. Counsel for the petitioner and the United States have stated to this court that the petitioner is already serving a sentence imposed by the District Court of the United States for the Eastern District of Pennsylvania for failure to obey" }, { "docid": "7847953", "title": "", "text": "ST. SURE, District Judge. A writ of certiorari was issued directed to Local Board No. 61 of Oakland and the Appeal Board of Oakland, seeking to re- . view proceedings taken under the Selective Training and Service Act of 1940, 50 U.S. C. A. Appendix § 301 et seq. Petitioner alleges that despite the uncontroverted evidence presented by him to respondent Boards that he is a minister of the gospel, and therefore entitled to be classified in Class IV-D under the Selective Training and Service Act and the rules and regulations made pursuant thereto, he was arbitrarily classified as a conscientious objector in Class IV-E. ■ Application for the writ was made upon the authority of Boitano v. District Board, D. C., 250 F. 812, a case decided by the late Judge Dooling, who presided in this Court. The proceeding before Judge Dooling sought to review action taken by a local Board under the Selective Draft Act of 1917, 50 U.S.C.A. § 226 note, the provisions of which were similar to those of the present Act. It is probable that he issued the writ assuming Section 1068 of the California Code of Civil Procedure, relating to the issuance of writs of review, applied under the Conformity Act, which has been superseded by the Federal Rules of Civil Procedure effective in 1938, 28 U.S.C.A. following section 723c. A motion to dismiss is made upon behalf of respondents upon the ground that “the Court is without jurisdiction over, and does not have the power to review, the actions of the respondents.” Upon consideration of the law applicable to the matter, I am of the opinion that the motion should be granted. Shimola v. Local Board No. 42, D.C., 40 F.Supp. 808; In re Soberman, D.C., 37 F.Supp. 522; United States ex rel. Roman v. Rauch et al., D.C., 253 F. 814. The writ of certiorari will therefore be discharged, the restraining order issued on February 20, 1942, set aside, and the petition dismissed." }, { "docid": "20141199", "title": "", "text": "and entered into after careful consideration and long planning and not for evasion. In support of the draftee’s contention many sections of the Selective Training and Service Act of 1940 are referred to. This contention is opposed and it is urged that the Local Board acted properly in refusing to reclassify the selectee and that the action of the Board is conclusive upon the Courts. Selective Service Boards are Administrative Bodies created by the Selective Training and Service Act of 1940, with powers, duties and procedures conferred by the law and the regulations not inconsistent with the law as prescribed by the President. The Selective Training and Service Act of 1940, Section 10 (a), Subsection (2), 50 U.S.C.A. Appendix, § 310(a) (2), states: “ * * * Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. * * * ” In 1917, under a similar section, several cases arose, which have been reviewed recently in United States ex rel. Filomio v. Powell et al., D.C., 38 F.Supp. 183. This case is authority for the holding that the act provides the decisions of the Local Boards are final on questions of fact which arise in administering their duties and the courts may not disturb such decisions unless it appears that the parties involved have not been afforded a full and fair hearing, or that the executive officers have acted contrary to law or have manifestly abused their discretion committed to them by the statute. See also Ex Parte Platt, D.C., 253 F. 413. In Arbitman v. Woodside, 4 Cir., 258 F. 441, 442, the court made the following comment:" }, { "docid": "22240590", "title": "", "text": "by a local draft board subject to court review upon writ of certiorari. (Allison v. Local Board, D.C.N.D.Cal., 43 F.Supp. 896) or upon writ of habeas corpus. United States ex rel. Troiani v. Heyburn, D.C.E.D.Pa., 245 F. 360, 362. However, a registrant who has been inducted pursuant to the Selective Service Act may, by writ of habeas corpus, obtain a judicial determination as to whether the local draft board acted in an arbitrary and capricious manner or denied the registrant a full and fair hearing. See United States ex rel. Pasciuto v. Baird, supra; United States ex rel. Errichetti v. Baird, supra; Application of Greenberg, D.C.N.J., 39 F.Supp. 13, 16; United States ex rel. Filomio v. Powell, supra, 38 F.Supp. at page 186; Dick v. Tevlin, supra. Whether a registrant is a minister of religion presents a question of fact which, from its very nature, is committed by the Act to the determination of the competent local draft board. Johnson v. United States, 8 Cir., 126 F.2d 242, 247. The only appeal from a finding of such nature is the appeal provided by the Act to the county appeal board. It is only a limited number of instances which involve primarily questions of dependency that registrants may appeal to the President; and the records in the instant cases do not present situations appropriate for appeal to the President. Persons obliged to register under the Selective Service Act are not entitled to exemption as a matter of right. The discretion to determine whether certain classes of registrants should be exempted or deferred is reposed by the Act in the President and the boards or agencies which he is further authorized to create for the purpose of administering the Act. In United States ex rel. Koopowitz v. Finley, D.C.S.D.N.Y., 245 F. 871, 877, which arose under the Selective Draft Act of 1917, the court said that: “Whether a person is a non-declarant alien or not is a question of fact, exactly the same as whether a person is a duly ordained minister of religion * * *, and the clear purpose of" }, { "docid": "3119963", "title": "", "text": "BIGGS, Circuit Judge. Leland W. Drumheller was classified by the Berks County Local Board No. 1 of the Selective Service System in class IV-E as a conscientious objector and was about to be assigned by the Board to a civilian public service camp. Drumheller filed a petition in the court below praying for a writ of certiorari and for an injunction to restrain the Board from sending him to such a camp pending the disposition of issues sought to be raised by him upon the writ. The court below directed the writ to issue but thereafter granted a motion to dismiss the petition. The appeal at bar followed. The facts are as follows. Drumheller duly registered as required by Section 2 of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix § 302. He is and was a member of that sect known as Jehovah’s Witnesses. He alleges that he submitted to the Board “ * * * full and conclusive proof that he was and is an ordained minister of Jehovah God * * *” and that he has given up all secular occupations and has become a “Pioneer” for the Watchtower Bible and Tract Society. If the Board had classified him as a regular or duly ordained minister of religion pursuant to Section 5(d), 50 U.S.C.A. Appendix § 305(d) he would have been exempt from training and service. Drumheller alleges that he was not so classified because the Board denied him a fair hearing, acted capriciously and in gross abuse of its discretion. He appealed to the Appeal Board which affirmed the decision of the Local Board. The fifteenth paragraph of his petition alleges, “That petitioner believes that if he were to report to such a [civilian public service] camp, in accordance with * * * [the] assignment [of the Board], he would violate his covenant with Almighty God, which is to bear witness to His truth, and petitioner therefore will refuse to go to such a camp and will be treated as a delinquent and prosecuted under the Selective Service and Training Act * *" }, { "docid": "3119966", "title": "", "text": "have already indicated Drumheller takes the position that he could not avail himself of the benefit of a writ of habeas corpus. Can Drumheller raise the questions which he seeks to have the lower court determine, by writ of certiorari, or, putting technicalities as to forms of writs to one side, is he entitled in the present proceeding to the relief he seeks? At common law the writ of certiorari was a writ issued by a superior court of record to an inferior court of record or other tribunal or officer, exercising a judicial function requiring the certification and return by the latter of some proceeding then pending, or the record and proceedings in some cause already terminated, where the procedure was not in accordance with the rules of common law. The writ was exercised to make the record “more certain” before the higher tribunal and to authorize employment of the writ the act complained of had to be a judicial act and not executive or legislative. In the Matter of Mount Morris Square, 2 Hill, N.Y., 14. See, also, People v. Rochester, 21 Barb., N.Y., 656, Beaverton Tp. v. Lord, 235 Mich. 261, 209 N.W. 122 and see United States v. Rauch, D.C., 253 F. 814. We are of the opinion that the functions of the Selective Service Boards under the Selective Training and Service Act are purely administrative and executive and that these Boards do not possess judicial or quasi-judicial powers. The learned District Judge disposed of the petition upon this ground alone and we think he was justified in doing so. Our conclusion in this respect is supported by two of the very decisions cited by the appellant. In Degge v. Hitchcock, 229 U.S. 162, 33 S.Ct. 639, 57 L.Ed. 1135, a writ of certiorari was denied when one was sought in order to review an order of the Postmaster General, and in Re 620 Church St. Corp., 299 U.S. 24, 57 S.Ct. 88, 81 L.Ed. 16, certiorari was granted to review the legality of an action of a bankruptcy court. But assuming, in view of the" }, { "docid": "20185571", "title": "", "text": "could not work if he so desired. The thorough detailed investigation of this case is illustrative of the interest and precaution taken by the authorities to insure the fair treatment of the selectee at the hands of the Local Board. The law appears to be settled that the action of local boards within the scope of their authority is final and not subject to judicial review unless the board has acted contrary to law or has manifestly abused the discretion committed to them by statute. The sole claim made here by the selectee is that there is no substantial proof to support the conclusion that the selectee has no dependents. The Local Board was empowered to act under the Selective Training and Service Act of 19^0, Section 10(a), Subsection (2), 50 U.S.C.A. Appendix § 310(a) (2), which provides: “ * * * Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. * * * ” Under a similar section, a number of cases have arisen, which have been reviewed in United States ex rel. Filomio v. Powell et al., D.C., 38 F.Supp. 183, which states at page 188: “A number of cases arose following the enactment of the Selective Service Act of 1917, 50 U.S.C.A. § 226 note, in which use was sought to be made of the writ of habeas corpus for release from the army. Among them is the case of United States v. Kinkead, D.C., 248 F. 141, affirmed, 3 Cir., 250 F. 692, in which appears the following pertinent comment with reference to the decisions of draft boards and the conclusiveness of their determinations:" }, { "docid": "3119964", "title": "", "text": "* * *” and that he has given up all secular occupations and has become a “Pioneer” for the Watchtower Bible and Tract Society. If the Board had classified him as a regular or duly ordained minister of religion pursuant to Section 5(d), 50 U.S.C.A. Appendix § 305(d) he would have been exempt from training and service. Drumheller alleges that he was not so classified because the Board denied him a fair hearing, acted capriciously and in gross abuse of its discretion. He appealed to the Appeal Board which affirmed the decision of the Local Board. The fifteenth paragraph of his petition alleges, “That petitioner believes that if he were to report to such a [civilian public service] camp, in accordance with * * * [the] assignment [of the Board], he would violate his covenant with Almighty God, which is to bear witness to His truth, and petitioner therefore will refuse to go to such a camp and will be treated as a delinquent and prosecuted under the Selective Service and Training Act * * Drumheller’s counsel argued in this court that it would be a violation of his client’s conscience for him to go to the railroad station whence selectees are taken to camps and there submit himself to the military or civilian authorities; that Drumheller felt that he must be free to preach and that he could not voluntarily impair his function as a preacher by submission to any other authority than that of God. If he had been assigned to camp, had submitted himself to the civilian authorities which have charge of the civilian public service camps, he could have petitioned the court for a writ of habeas corpus. Upon the issuance of that writ the entire record which the Local Board had before it would have been brought into court and if the Board had acted capriciously, arbitrarily or in gross abuse of its discretion the court below could have so found and Drumheller could have been discharged from custody. See the decision of this court in United States v. Grieme, 128 F.2d 811. As we" }, { "docid": "4174996", "title": "", "text": "appellant has exhausted such administrative remedies, but it is the generally accepted rule that, under the Selective Training and Service Act, no review of findings of Local Draft Boards upon any classification or the denial of an exemption is committed to the courts, and relief may be granted the registrant only when the Local Draft Board has acted arbitrarily and capriciously and without substantial evidence. Johnson v. United States, 8 Cir., 126 F.2d 242; Rase v. United States, 6 Cir., 129 F.2d 204; United States v. Grieme, 3 Cir., 128 F.2d 811, and many others. This is in accord with the pronouncement of the Supreme Court that where the decision of a Director is final and conclusive on any specific matter under an Act, it is not subject to judicial review, “at least unless the decision be wholly unsupported by evidence, wholly dependent upon a question of law, or clearly arbitrary or capricious”. Silberschein v. United States, 266 U.S. 221, 45 S.Ct. 69, 69 L.Ed. 256. The Selective Training and Service Act of September 16, 1940, 50 U.S.C.A. Appendix, § 305(d) provides: “Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act.” The regulations prescribed by the President define regular and ordained ministers as follows: “B. A ‘regular minister of religion’ is a man who customarily preaches and teaches the principles of religion of a recognized church, religious sect, or religious organization of which he is a member, without having been formally ordained as a minister of religion; and who is recognized by such church, sect, or organization as a minister. “C. A ‘duly ordained minister of religion’ is a man who has been ordained in accordance with the ceremonial ritual or discipline of a recognized church, religious sect, or religious organization, to teach and preach its doctrines and to administer its rites and ceremonies in public worship; and" }, { "docid": "13996641", "title": "", "text": "considered the briefs filed and has made considerable independent investigation of the authorities bearing upon the questions involved. The facts raised by the complaint insofar as jurisdiction is concerned must be taken as true. The facts raise questions that have not been passed upon directly by the courts, under the Selective Training and Service Act of 1940. In analyzing the situation and making the proper application of the law to the facts presented, it would be well to con sider the purpose of the Act. What was its purpose? What did the Congress expect to accomplish by it ? How ■ did the Congress expect it to be administered, to best accomplish the results intended? The Act (Title 50 U.S.C.A.Appendix, § 310) provides in part as follows: “Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe.” The complaint, when analyzed, presents a simple case of mandamus. It is true that the allegations also are such as to call for injunctive relief, but the ultimate goal is a writ of mandamus. Any restraining order or temporary writ of injunction, notwithstanding its name, would operate as an alternative writ of mandamus. In Drumheller v. Berks County Local Board No. 1, 130 F.2d 610, the Circuit Court of Appeals, Third Circuit, had a similar situation before it. Drumheller was classified by his board in IV-E. He was a member of that sect known as Jehovah’s Witnesses. He claimed that the board should have classified him as a regular or duly ordained minister of religion and that under such classification he would have been exempt from training and service. He stated that" }, { "docid": "2234320", "title": "", "text": "be exempt from training and service.” 50 U.S.C.A. Appendix § 301 et seq. Whether the ¡petitioner is a “regular” or “ordained minister” of religion is the point at issue. Both the local board and the appeal board considered the evidence submitted by him and held that he was not a minister of religion. The Selective Training and Service Act of 1940, like its predecessor, the conscription Act of 1917, 50 U.S.C.A. Appendix § 201 et seq., sets up a complete administrative system for the registration, classification and induction of male citizens. All questions or claims with reference to exemption are committed to registrant’s local board for determination, subject to appeal to the appeal board, and in some cases an appeal to the President of the United States. The Act does not grant jurisdiction upon the courts to review any classification or the denial of any exemption made by the local boards. During the last war, in a case arising in this circuit', Arbitman v. Woodside, 4 Cir., 1919, 258 F. 441, 442, the court said: “The rule is established that the action of such executive boards within the scope of their authority is final, and not subject to judicial review, when the investigation has been fair and the finding supported by substantial evidence; but upon proof that the investigation has not been fair, or that the board has abused its discretion by a finding contrary to all the substantial evidence, relief should be given by the courts under the writ of habeas corpus.” Under the 1940 Act the courts have reached a similar conclusion, although the registrant must first exhaust his administrative remedies before asking for such a writ. Rase v. United States, 6 Cir., 129 F.2d 204; Johnson v. United States, 8 Cir., 126 F.2d 242; United States v. Kauten, 2 Cir., 133 F.2d 703; Buttecali v. United States, 5 Cir., 130 F.2d 172; Fletcher v. United States, 5 Cir., 129 F.2d 262; United States v. Grieme, 3 Cir., 128 F.2d 811. The question before me in this case is whether there is substantial evidence to sustain the finding" }, { "docid": "3444186", "title": "", "text": "U.S.C.A. Appendix, § 305(e); Selective Training and Service Act of 1940, as amended, Sec. 5(k); Selective Service Regulations No. 622.25, No. 633.14; No. 626.1(a); No. 626.2; No. 626.3; No. 627.1 to 627.31; No. 627.61 to 627.72; No. 628.1 to 628.7. “Persons obligated to register under the Selective Service Act are not entitled to exemption as a matter of right. The discretion to determine whether certain classes of registrants should be exempted or deferred is reposed by the Act in the President and the boards or agencies which he is further authorized to create for the purpose of administering the Act.” United States v. Grieme, 3 Cir., 128 F.2d 811, 815. It is only when it appears on the face of the record that the action of the Local Board infringed the constitutional rights of the inductee that the courts have the right to interfere, for draft boards are administrative agencies not subject to review by the courts. See Shimola v. Local Board, D.C., 40 F.Supp. 808, 810; Drumheller v. Berks County Local Board, D.C., 43 F.Supp. 881, 882; Rase v. United States, 6 Cir., 129 F.2d 204, 207; United States v. Grieme, supra, 3 Cir., 128 F.2d at page 814. It is further contended by petitioner that under the authority of Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, he is entitled to be produced in court and have a judicial hearing. One of the questions put by the Supreme Court, 312 U.S. at page 283, 61 S.Ct. at page 577, 85 L.Ed. 830, is, “Was the District Court, on the filing of the petition, bound forthwith to issue the writ and have the petitioner produced in answer to it?” The question is answered as follows (312 U.S. at page 284, 61 S.Ct. at page 578, 85 L.Ed. 830) : “It will be observed that if, upon the face of the petition, it appears that the party is not entitled to the writ, the court, may refuse to issue it. Since the allegations of such petitions are often inconclusive, the practice has grown up of issuing" }, { "docid": "13996642", "title": "", "text": "training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe.” The complaint, when analyzed, presents a simple case of mandamus. It is true that the allegations also are such as to call for injunctive relief, but the ultimate goal is a writ of mandamus. Any restraining order or temporary writ of injunction, notwithstanding its name, would operate as an alternative writ of mandamus. In Drumheller v. Berks County Local Board No. 1, 130 F.2d 610, the Circuit Court of Appeals, Third Circuit, had a similar situation before it. Drumheller was classified by his board in IV-E. He was a member of that sect known as Jehovah’s Witnesses. He claimed that the board should have classified him as a regular or duly ordained minister of religion and that under such classification he would have been exempt from training and service. He stated that he was not so classified because his board denied him a fair hearing and acted capriciously and in gross abuse of its discretion. He appealed from their decision, which decision was affirmed. He then instituted a suit praying for writ of certiorari and for an injunction. The court held: “The functions of the Selective Service Board are purely ‘administrative’ and ‘executive’ and are not ‘judicial’ or ‘quasi-judicial functions’ reviewable by certiorari. * * * “The action of local draft board in rejecting registrant’s claim of exemption as ordained minister and classifying him as a conscientious objector was a determination of a ‘question of fact’ not reviewable by certiorari. * * * “If a local draft board acts in an arbitrary manner in classifying a registrant as a conscientious objector rather than an ordained minister, registrant may after surrendering himself to the authorities, by writ of habeas corpus obtain a judicial determination of the propriety of the board’s action but registrant may not disobey board’s order and challenge its action by certiorari.” In the body of" }, { "docid": "3119967", "title": "", "text": "Hill, N.Y., 14. See, also, People v. Rochester, 21 Barb., N.Y., 656, Beaverton Tp. v. Lord, 235 Mich. 261, 209 N.W. 122 and see United States v. Rauch, D.C., 253 F. 814. We are of the opinion that the functions of the Selective Service Boards under the Selective Training and Service Act are purely administrative and executive and that these Boards do not possess judicial or quasi-judicial powers. The learned District Judge disposed of the petition upon this ground alone and we think he was justified in doing so. Our conclusion in this respect is supported by two of the very decisions cited by the appellant. In Degge v. Hitchcock, 229 U.S. 162, 33 S.Ct. 639, 57 L.Ed. 1135, a writ of certiorari was denied when one was sought in order to review an order of the Postmaster General, and in Re 620 Church St. Corp., 299 U.S. 24, 57 S.Ct. 88, 81 L.Ed. 16, certiorari was granted to review the legality of an action of a bankruptcy court. But assuming, in view of the importance of the question involved, that a board, similar to those created under the Selective Training and Service Act, must be deemed to be a quasi-judicial body and exercises judicial functions and that a District Court of the United States is its superior tribunal, an assumption quite unjustified by any statutory warrant, none the less a writ of certiorari will not lie to enable a superior court to pass upon, revise or reverse the decision of a lower tribunal as to matters of fact. Allison v. Local Board No. 61, D.C., 43 F.Supp. 896; Shimola v. Local Board No. 42, D.C., 40 F.Supp. 808. Compare United States v. Rauch, supra; In re Kitzerow, D.C., 252 F. 865. We believe that there are no cases to the contrary. The question as to whether Drumheller was a regular or duly ordained minister of religion and, therefore, entitled to exemption from training or service is one of fact. This very question, as we pointed out in United States v. Grieme, supra [128 F.2d 814], is one which “from" }, { "docid": "13996643", "title": "", "text": "he was not so classified because his board denied him a fair hearing and acted capriciously and in gross abuse of its discretion. He appealed from their decision, which decision was affirmed. He then instituted a suit praying for writ of certiorari and for an injunction. The court held: “The functions of the Selective Service Board are purely ‘administrative’ and ‘executive’ and are not ‘judicial’ or ‘quasi-judicial functions’ reviewable by certiorari. * * * “The action of local draft board in rejecting registrant’s claim of exemption as ordained minister and classifying him as a conscientious objector was a determination of a ‘question of fact’ not reviewable by certiorari. * * * “If a local draft board acts in an arbitrary manner in classifying a registrant as a conscientious objector rather than an ordained minister, registrant may after surrendering himself to the authorities, by writ of habeas corpus obtain a judicial determination of the propriety of the board’s action but registrant may not disobey board’s order and challenge its action by certiorari.” In the body of the opinion the court uses language which is appropriate to the case at bar, as follows: “Section 10(a)(2) of the Selective Training and Service Act, 50 U.S.C.A.Appendix § 310(a) (2), provides that the decisions of the local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. The language employed in Section 10(a) (2) is substantially identical with that used in Section 4 of the Selective Draft Act of 1917, 50 U.S.C.A.Appendix § 204. The Selective Training and Service Act of 1940 (precisely as did the Selective Draft Act of 1917) contemplates a rapid disposition by selective service boards of the eligibility and availability of the male citizens of this country for military service. We think that nothing could prove more disruptive to the smooth functioning of the Selective Training and Service Act than to permit an individual to refuse training or service, meanwhile employing a writ of certiorari to carry his case from his local board through the courts.” In Fletcher v." }, { "docid": "5977892", "title": "", "text": "LINDLEY, District Judge. Defendant appeals from a conviction of violation of Section 11 of the Selective Training and Service Act, 50 U.S.C.A. Appendix § 311, in that he knowingly failed to report for work of national importance under civilian direction as ordered by his local draft board. He had been eventually classified as a conscientious objector, but toward the end of the proceeding he claimed to be an ordained minister of religion and now seeks reversal by an attack upon the order classifying him and ordering him to report as a conscientious objector as so arbitrary and capricious as to nullify the prosecution. Under Section 310(a) of the Act, the decision of the Board is final except where an appeal is authorized. The Board is the administrative fact-finding body charged with classification of registrants and their induction. Even if this were a proceeding for direct review, reasoning from analogous situations, we would have power only to determine whether the finding and order are supported by substantial evidence. In a criminal prosecution, our authority is even narrower, for trial of an indictment is not a review of the Board's-order and, in such prosecutions, neither the-trial court nor this one sits as a tribunal authorized to review or weigh the evidence heard by that body. United States v. Mroz, 7 Cir., 136 F.2d 221; United States v. Kauten, 2 Cir., 133 F.2d 703; Seele v. United States, 8 Cir., 133 F.2d 1015; Rase v. United States, 6 Cir., 129 F.2d 204; Buttecali v. United States, 5 Cir., 130 F.2d 172; Baxley v. United States, 4 Cir., 134 F.2d 998; United States v. Grieme, 3 Cir., 128 F.2d 811; Fletcher v. United States, 5 Cir., 129 F.2d 262; United States v. Bowles, 3 Cir., 131 F.2d 818; affirmed 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194; concurring opinion of Mr. Justice Douglas in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. The-same rule was applied under the Selective-Service Act of 1917, 50 U.S.C.A. App endix. § 201 et seq. See Ex parte Romano, D.C.D., Mass., 251" } ]

[ { "docid": "7908067", "title": "", "text": "therefore it is likely that the district court would still have denied Dalton’s motion to suppress. Moreover, because Moore did not testify at trial and likely would have exercised his right to avoid self-incrimination had he had been called to testify, the outcome of the trial would probably not have been different had Dalton and the other Defendants known that the FBI was currently investigating Moore for filing false police reports. Thus, the district court did not err in denying Dalton’s motion for acquittal or a new trial. 3. Lance’s Motion for Acquittal or a New Trial Lance argues that there was insufficient evidence to convict him of conspiring to obstruct a federal proceeding. In particular, he argues that the Government failed to offer any evidence showing a nexus between Lance’s agreement to sign the false affidavit taking responsibility for the handgun and crack in the truck and the federal charges brought against Dalton. Under 18 U.S.C. § 1512(c)(2), it is a crime to “corruptly ... obstruct[ ], influence[], or impede[] any official proceeding, or attempt[ ] to do so.” The “official proceeding need not be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(f)(1). The government must, however, prove beyond a reasonable doubt some “nexus” between the obstruction and the official proceeding. See Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005). In a phone call the morning after Dalton was arrested, Dalton told Lance: “I need you to take this charge, bro. You ain’t gonna get nothin’ but provation [sic], bro. I’m a get Jason Williams for your lawyer, and I’m a bond you out and you gonna fight this shit on the street bro.” Lance responded, “I’m a do it.” Dalton then told Lance: “But, uh, man, y’all gotta go, y’all go, you got to find [Miller] and, and go down there with Jason Williams and try to take this, this bro, before the feds accept it bro cause, which you they ain’t gonna fuck which you like that, bro.” That phone" } ]

[ { "docid": "5214745", "title": "", "text": "of the offense.” Id. § 1512(f)(1). There does, however, need to be a connection between the defendant’s conduct and the official proceeding. In Arthur Andersen LLP v. United States, the United States Supreme Court reviewed convictions under § 1512(b)(2)(A) and (B). 544 U.S. 696, 698, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005). The Court held that to satisfy the. “official proceeding” requirement, under those subsections, the Government must show a “nexus” between the defendant’s conduct and a particular proceeding. Id. at 707-08, 125 S.Ct. 2129. To meet that nexus requirement, the Government must prove that the defendant “ha[d] in contemplation [a] particular official proceeding” when he or she attempted to interfere with evidence or a witness. Id. at 708, 125 S.Ct. 2129. The proceeding need not have been pending or about to be instituted, but it must have been foreseeable. Id. at 707-08, 125 S.Ct. 2129. Thus, the defendant “must believe that his actions are likely to affect a particular, existing or foreseeable official proceeding.” United States v. Kaplan, 490 F.3d 110, 125 (2d Cir.2007) (citing Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129). While the Court in Arthur Andersen interpreted § 1512(b)(2)(A) and (B) only, the Court’s analysis and application of the “nexus” requirement applies with equal force to § 1512(b)(1). All three subsections qualify the prohibited conduct by requiring that the defendant target testimony or evidence in an “official proceeding.” Consistency demands that we apply the Arthur Andersen nexus requirement to § 1512(b)(1). See United States v. Matthews, 505 F.3d 698, 708 (7th Cir.2007) (holding that Arthur Andersen applies to prosecutions under § 1512(c)(1) because that subsection also “speaks in terms of the relationship between obstructive acts and a proceeding.”); Kaplan, 490 F.3d at 126 (noting that the jury instructions on the § 1512(b)(1) charge “undoubtedly needed to comply with the nexus requirement discussed in Arthur Andersen ”). Accordingly, the Government in a § 1512(b)(1) prosecution is tasked with proving that the defendant contemplated a particular “official proceeding” that was foreseeable when he or she engaged in the proscribed conduct. As part of that requirement, the Government" }, { "docid": "5214744", "title": "", "text": "been summoned by legal process; or (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than 20 years, or both. 18 U.S.C. § 1512(b). Shavers and White were convicted of violating § 1512(b)(1), which seeks to safeguard anticipated testimony in an “official proceeding.” An “official proceeding” for the purposes of the VWPA is defined as a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury- Id. § 1515(a)(1)(A). The VWPA explicitly provides that “an official proceeding need not be pending or about to be instituted at the time of the offense.” Id. § 1512(f)(1). There does, however, need to be a connection between the defendant’s conduct and the official proceeding. In Arthur Andersen LLP v. United States, the United States Supreme Court reviewed convictions under § 1512(b)(2)(A) and (B). 544 U.S. 696, 698, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005). The Court held that to satisfy the. “official proceeding” requirement, under those subsections, the Government must show a “nexus” between the defendant’s conduct and a particular proceeding. Id. at 707-08, 125 S.Ct. 2129. To meet that nexus requirement, the Government must prove that the defendant “ha[d] in contemplation [a] particular official proceeding” when he or she attempted to interfere with evidence or a witness. Id. at 708, 125 S.Ct. 2129. The proceeding need not have been pending or about to be instituted, but it must have been foreseeable. Id. at 707-08, 125 S.Ct. 2129. Thus, the defendant “must believe that his actions are likely to affect a particular, existing or foreseeable official proceeding.” United States v. Kaplan, 490 F.3d 110, 125 (2d Cir.2007)" }, { "docid": "21156012", "title": "", "text": "at 706-07, 125 S.Ct. 2129 (brackets omitted), and (2) instructing the jury that “even if [Arthur Andersen] honestly and sincerely believed that its conduct was lawful, you may find [Arthur Andersen] guilty,” id. at 706, 125 S.Ct. 2129. The district court here charged nothing of the sort. To convict, the jury had to find that Kaplan acted with an “improper purpose” and with “unlawful intent.” Second, with regard to Kaplan’s argument that the district court’s instructions were erroneous in light of Arthur Andersen’s discussion of the statute’s nexus requirement, we note first that the charges in Arthur Andersen were brought under two clauses of § 1512(b)(2), both of which explicitly include as an element that the obstruction or tampering relate to an “official proceeding,” see id. at 702, 125 S.Ct. 2129. Kaplan, however, was charged under §§ 1512(b)(1) and (3). With respect to § 1512(b)(3), it is unclear whether Arthur Andersen’s nexus requirement is applicable because § 1512(b)(3) does not explicitly refer to an “official proceeding.” See United States v. Byrne, 435 F.3d 16, 23-25 (1st Cir.2006). We need not decide this issue, because even if the nexus requirement is applicable to prosecutions under § 1512(b)(3), and the district court’s instructions under § 1512(b)(3) were erroneous for failure to discuss nexus, any such error was harmless in the circumstances of this case for the reasons discussed below. Kaplan was, as noted, also charged under § 1512(b)(1), which does contain an explicitly stated element of an “official proceeding.” The jury instructions on this charge undoubtedly needed to comply with the nexus requirement discussed in Arthur Andersen. The district court instructed the jury that the government “must prove” that the defendant acted “with the specific intent to influence the testimony of another person in an official federal proceeding.” The instructions did not identify the official proceeding. In view of the Supreme Court’s discussion in Arthur Andersen, 544 U.S. at 707, 125 S.Ct. 2129 (finding the instructions infirm because they led the jury to believe that it did not have to find any nexus between the “persuasion” to destroy documents and any “particular" }, { "docid": "408934", "title": "", "text": "The Court reasoned that it is “one thing to say that a proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and quite another to say a proceeding need not even be foreseen.” Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129. The Court concluded that a defendant cannot be convicted under §§ 1512(b)(2)(A) and (B) unless he or she “contémplateos]” a “particular official proceeding” in which the documents at issue might be material. Id. at 708; 125 S.Ct. 2129. Relying on Aguilar and Arthur Andersen, many of our sister circuits have applied the nexus requirement to 18 U.S.C. § 1512(c)(2). See, e.g., United States v. Tyler, 732 F,3d 241, 249-50 (3d Cir.2013) (applying the nexus requirement to “any prosecution brought under a § 1512 provision charging obstruction of justice involving an ‘official proceeding’ ”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S.-, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) (same); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that the nexus requirement applies to § 1512(c)(2)); United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007) (applying nexus requirement to § 1512(c)(2)). Further, we are aware of no circuit that has considered and rejected application of the nexus requirement to § 1512(c)(2). Considering the similarity of statutory language between § 1512(c)(2) and the catchall provision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen to another provision of § 1512, and other circuits’ application of the nexus requirement to § 1512(c)(2), we hold that § 1512(c)(2) incorporates the nexus requirement set forth in Aguilar and Arthur Andersen. In other words, we hold that a successful prosecution under § 1512(c)(2) requires proof beyond a reasonable doubt that the defendant contemplated a particular, foreseeable proceeding, and that the contemplated proceeding constituted an “official proceeding,” which is defined under § 1515(a)(1)(A)" }, { "docid": "17352029", "title": "", "text": "v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (same); Matthews, 505 F.3d at 707-08 (applying nexus requirement to § 1512(c)(1)); United States v. Kaplan, 490 F.3d 110, 126 (2d Cir.2007) (applying nexus requirement to § 1512(b)(1)). Having considered the effect of Arthur Andersen on the § 1512 official proceeding provisions, we now must examine whether the evidence in the record is consistent with Tyler’s claim that he is actually innocent of violating § 1512’s official proceeding provisions. We emphasize that our review “does not amount to a determination of whether there is sufficient evidence to convict,” but only considers whether the evidence supports Tyler’s actual innocence claim “such that remand is required to allow [him] an opportunity to establish his actual innocence.” Garth, 188 F.3d at 110. We believe that it does. In Shavers, we considered the evidence presented at trial and concluded that it was insufficient as a matter of law to satisfy the official proceedings requirement because the defendant’s conduct was directed at preventing a witness from testifying in a state court proceeding and because there was no evidence that the defendant contemplated another proceeding. 693 F.3d at 379-80. Tyler’s case is no different. Similar to Shavers, there was no evidence that Tyler’s conduct was directed at preventing Proctor’s testimony at anything other than as a witness to a state drug offense at Tyler’s brother’s state trial, or that Tyler contemplated a federal proceeding. Special Agent Diller conceded at Tyler’s trial that at the time of Proctor’s death he had not contacted any federal agency to discuss a federal case involving Proctor as a federal witness and there was no plan to use her in a federal proceeding. Indeed, in considering the appeal of Tyler’s co-conspirator, we concluded that “there was no federal proceeding contemplated at the time of Proctor’s murder.” Bell, 113 F.3d at 1348. Thus, based on our review of the record, we have uncovered no evidence to satisfy Arthur Andersen’s requirement that the Govern ment prove a nexus between Tyler’s conduct and a foreseeable particular federal proceeding to establish a conviction under § 1512(a)(1)(A), (b)(1)," }, { "docid": "22952144", "title": "", "text": "United States v. Mintmire, 507 F.3d 1273, 1289 (11th Cir.2007) (quotation marks and alterations in original omitted). Friske argues that the district court erred in denying his motion for judgment of acquittal because the government did not offer evidence sufficient to support a finding that he knew of the forfeiture proceeding. As an initial matter, we must decide whether the government was required to prove that Friske knew of the forfeiture proceeding. In United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), the Supreme Court held that a similar statute, 18 U.S.C. § 1503, which prohibits “corruptly or by threats of force, ... influencing], obstructing], or impeding], or endeavoring] to influence, obstruct, or impede, the due administration of justice,” contains “a ‘nexus’ requirement — that the act must have a relationship in time, causation, or logic with the judicial proceedings.” Id. at 599, 115 S.Ct. at 2362. As our sister circuits have explained, “[t]he nexus limitation is best understood as an articulation of the proof of wrongful intent that will satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir.2009) (quotation marks omitted); see also United States v. Quattrone, 441 F.3d 153, 170 (2d Cir.2006) (using same language to describe nexus requirement as applied to § 1503). In Aguilar, the Supreme Court stated that “if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362. In Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Supreme Court extended this requirement — that there be “a ‘nexus’ between the obstructive act and the proceeding”— to another similar statute, 18 U.S.C. § 1512(b)(2), which prohibits, among other things, “knowingly ... corruptly persuading] another person ... with intent to ... cause or induce any person to ... withhold testimony ... or ... document[s] ... from an official proceeding.” Id. at 708, 125 S.Ct. at 2137. We now join our sister circuits in concluding" }, { "docid": "17352025", "title": "", "text": "§ 2241 petition, we reconciled the Supreme Court’s holdings in Arthur Andersen and Fowler. 693 F.3d at 378-79. While the Arthur Andersen Court only specifically addressed the nexus requirement in the official proceeding provisions of § 1512(b)(2)(A) and (B), we held that the analysis applies “with equal force to § 1512(b)(1),” which also was qualified by an official proceeding. Id. at 378. Rea soning that “[Consistency demanded] that we apply the Arthur Andersen nexus requirement to § 1512(b)(1),” we held that the Government was required to “prov[e] that the defendant contemplated a particular ‘official proceeding’ that was foreseeable when he or she engaged in the proscribed conduct.” Id. While we did not address the other provisions in § 1512 that were also qualified by an official proceeding, based on our view of what “consistency demands,” we implied that Arthur Andersen ’s nexus requirement would apply to all § 1512 provisions proscribing conduct intended to affect an official proceeding. We also considered Fowler’s “reasonable likelihood” requirement for the investigation-related communication provision and rejected the view that it would apply to an official proceeding provision, § 1512(b)(1). We concluded that for the same reasons that Arthur Andersen’s nexus requirement does not apply to the investigation-related communication provisions, it would be “illogical” to apply Fowler’s reasonable likelihood requirement in the context of prosecutions under the official proceeding provisions. Id. at 379. Instead, we recognized that each of the § 1512 categories was subject to a different set of requirements, concluding that “there are at least two lines of jurisprudence developing separately under the VWPA: one for the investigation-related provisions, such as § 1512(b)(3) and (a)(1)(C), and one for the ‘official proceeding’ provisions, such as § 1512(b)(1) and (b)(2).” Id. D. Effect of Intervening Supreme Court Decisions on Tyler’s Convictions 1. Official Proceeding: Nexus Requirement Tyler contends that his conduct has been rendered non-criminal by the Supreme Court’s decision in Arthur Andersen because there was no evidence from which the Government could establish a nexus with an official proceeding. The District Court, though, held that Arthur Andersen did not establish that Tyler was actually" }, { "docid": "17352027", "title": "", "text": "innocent of his witness tampering offenses. It recognized that other Circuits have held that Arthur Andersen’s nexus requirement applies to other VWPA provisions containing the official proceedings language. United States v. Tyler, No. 1:96-CR-106, 2012 WL 951479, at *9 (M.D.Pa. Mar. 20, 2012) (citing United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) and United States v. Matthews, 505 F.3d 698, 707-08 (7th Cir.2007)). However, it reasoned that because the conduct at issue in Arthur Andersen was “by itself not inherently wrong,” a nexus requirement was necessary to ensure that “innocent conduct is not punished,” whereas Tyler’s conduct involved “consciousness of wrongdoing” so no such nexus requirement was necessary. Id., at *9-10. Thus, it disagreed with the holdings of these Circuits and held that ArtI J,r Andersen’s nexus requirement does not apply to § 1512(a)(1)(A) and (C) and § 1512(b)(1) and (b)(3), because “Arthur Andersen has not altered the legal landscape for all section 1512 offenses.” Id., at *10. The District Court’s holding is in sharp contrast with our subsequent holding in Shavers. There we expressly held that the nexus requirement for official proceedings extends to § 1512(b)(1) and implied that the nexus requirement would apply likewise to other obstructive conduct involving an official proceeding proscribed by § 1512. We similarly conclude here that in any prosecution brought under a § 1512 provision charging obstruction of justice involving an “official proceeding,” the government is required to prove a nexus between the defendant’s conduct and a particular official proceeding before a judge or court of the United States that the defendant contemplated. Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129. This holding is in line with our sister Circuits that have all concluded that the nexus requirement applies to other § 1512 provisions qualified by an official proceeding. See United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S. —, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); Phillips, 583 F.3d at 1263-64 (same); United States" }, { "docid": "5214746", "title": "", "text": "(citing Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129). While the Court in Arthur Andersen interpreted § 1512(b)(2)(A) and (B) only, the Court’s analysis and application of the “nexus” requirement applies with equal force to § 1512(b)(1). All three subsections qualify the prohibited conduct by requiring that the defendant target testimony or evidence in an “official proceeding.” Consistency demands that we apply the Arthur Andersen nexus requirement to § 1512(b)(1). See United States v. Matthews, 505 F.3d 698, 708 (7th Cir.2007) (holding that Arthur Andersen applies to prosecutions under § 1512(c)(1) because that subsection also “speaks in terms of the relationship between obstructive acts and a proceeding.”); Kaplan, 490 F.3d at 126 (noting that the jury instructions on the § 1512(b)(1) charge “undoubtedly needed to comply with the nexus requirement discussed in Arthur Andersen ”). Accordingly, the Government in a § 1512(b)(1) prosecution is tasked with proving that the defendant contemplated a particular “official proceeding” that was foreseeable when he or she engaged in the proscribed conduct. As part of that requirement, the Government must demonstrate beyond a reasonable doubt that the contemplated proceeding met the definition of “official proceeding” articulated in § 1515(a)(1)(A). The VWPA is clear, however, that the Government is not required to show that the defendant knew that the contemplated proceeding was federal in nature: In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance ... that the official proceeding ... is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency.... 18 U.S.C. § 1512(g)(1). The parties dispute whether the United States Supreme Court’s recent decision in Fowler v. United States affects our analysis. - U.S. -, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011). In Fowler, the Court considered the federal nature requirement in § 1512(a)(1)(C), which proscribes the murder of a person with the intent to “prevent the communication by any person to a law enforcement officer or judge of the United States of information relating" }, { "docid": "14149238", "title": "", "text": "1503 requires that a defendant’s obstructive conduct have a nexus in time, causation, or logic with the proceeding the defendant is charged with obstructing. Id. In other words, interference with the proceeding must be the natural and probable effect of the defendant’s conduct under § 1503. Id. In this way, we have explained that “[t]he nexus limitation is best understood as an articulation of the proof of wrongful intent that will satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir. 2009) (quotations omitted). In Arthur Andersen LLP v. United States, 544 U.S. 696, 708, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Court extended the Aguilar nexus requirement to prosecutions under § 1512(b), which prohibits (among other acts) intentionally and corruptly persuading another person to withhold documents from an official proceeding. In that case, the Court relied on Aguilar to determine that although a proceeding need not be pending under the statute, it must be at least foreseeable to the defendant, because a defendant who “ ‘lacks knowledge that his actions are likely to affect [a] judicial proceeding ... lacks the requisite intent to obstruct.’ ” Id. (quoting Aguilar, 515 U.S. at 599, 115 S.Ct. 2357). The Supreme Court has not determined whether the Aguilar nexus requirement extends to § 1512(c)(2). Two circuits, however, have applied the Aguilar nexus requirement to § 1512(c)(2), see United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007) (Sotomayor, J.); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that the Aguilar nexus requirement applies to § 1512(c)(2)), and we are aware of no court that has explicitly rejected this approach. Considering the similar statutory language of §§ 1503 and 1512(c)(2), the Supreme Court’s recent extension of the Aguilar nexus requirement to another subsection of § 1512, and other circuits’s application of the Aguilar nexus requirement to § 1512(c)(2), we hold that § 1512(c)(2) incorporates the nexus requirement as articulated by the Supreme Court in Aguilar. B. Sufficiency of the Evidence We now turn to the evidence adduced at trial. We review" }, { "docid": "408935", "title": "", "text": "Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) (same); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that the nexus requirement applies to § 1512(c)(2)); United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007) (applying nexus requirement to § 1512(c)(2)). Further, we are aware of no circuit that has considered and rejected application of the nexus requirement to § 1512(c)(2). Considering the similarity of statutory language between § 1512(c)(2) and the catchall provision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen to another provision of § 1512, and other circuits’ application of the nexus requirement to § 1512(c)(2), we hold that § 1512(c)(2) incorporates the nexus requirement set forth in Aguilar and Arthur Andersen. In other words, we hold that a successful prosecution under § 1512(c)(2) requires proof beyond a reasonable doubt that the defendant contemplated a particular, foreseeable proceeding, and that the contemplated proceeding constituted an “official proceeding,” which is defined under § 1515(a)(1)(A) to include a proceeding before a federal judge, court, or grand jury, but not a state proceeding. Turning to the facts presented at trial, we conclude that the evidence is insufficient to convict Petruk of Count 2 of the federal indictment for attempting to secure statements from false alibi witnesses while incarcerated on state charges. The transcripts of the telephone calls between Petruk and Peterson in December 2012 show that Petruk’s efforts were directed at securing false statements to use in his upcoming proceedings in Minnesota state court. On December 18, 2012, Petruk asked Peterson to secure alibi statements and told her he would need copies of the statements within the week. On December 26, 2012, Petruk stated that he would “need [the statements] in court tomorrow, or on Friday.” In making this statement, Petruk referred only to his pending state court proceedings. His federal prosecution was not initiated until June 2013. The facts of this case are analogous to those in United States v. Shavers, 693 F.3d 363, 379-81 (3d Cir.2012), vacated on other" }, { "docid": "8272420", "title": "", "text": "explains: .[Section 1512(f)(1) ] obviates the requirement that there be an official proceeding in progress or pending. The Committee felt that this increases the scope of the section by expanding the galaxy of witnesses and victims the protections of its language is meant to embrace. Intimidation offenses are particularly insidious and do violence to traditional notions of justice because no one can be convicted of a crime which is not reported. Subsection [(f)(1)], among other things, specifically reaches intimidation offenses before a crime is reported to the appropriate authorities: Judiciary Comm., 97th Cong., Victim and Witness Protection Act of 1982, S.Rep. No. 97-582, at 19 (1982), reprinted in 1982 U.S.C.C.A.N. 3 (emphasis added). That is, although the government must still connect the obstructive act to an official proceeding under §, 1512(b)(1), see Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129, the nexus does not have to be to an ongoing proceeding. Rather, it requires proof under § 1512(b)(1) of a foreseeable or contemplated proceeding. See id. (“It is, however, one thing to say that a proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and quite another to say a proceeding need not even be foreseen. A ‘knowingly ,.. corrup[t] persuade[r]’ cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.”); see also United States v. Friske, 640 F.3d 1288, 1292 n. 5 (11th Cir.2011) (“Consistent with Aguilar’s nexus requirement, the government must prove [under § 1512(c)(2) ] that the defendant-knew of or foresaw an official proceeding, and knew that his actions were likely to affect it.”). Other obstruction of justice crimes in § 1512 do not even require an “official proceeding:” • 18 U.S.C. § 1512(d)(2) (“Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from .,. reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense ----or attempts to do so, shall" }, { "docid": "22952145", "title": "", "text": "satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir.2009) (quotation marks omitted); see also United States v. Quattrone, 441 F.3d 153, 170 (2d Cir.2006) (using same language to describe nexus requirement as applied to § 1503). In Aguilar, the Supreme Court stated that “if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362. In Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Supreme Court extended this requirement — that there be “a ‘nexus’ between the obstructive act and the proceeding”— to another similar statute, 18 U.S.C. § 1512(b)(2), which prohibits, among other things, “knowingly ... corruptly persuading] another person ... with intent to ... cause or induce any person to ... withhold testimony ... or ... document[s] ... from an official proceeding.” Id. at 708, 125 S.Ct. at 2137. We now join our sister circuits in concluding that § 1512(c)(2) also contains a nexus requirement as articulated in Aguilar. See Phillips, 583 F.3d at 1264; United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007); see also United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that Aguilar nexus requirement applies to § 1512(c)(2)). Aguilar relied on the principle that “a person lacking knowledge of a pending proceeding necessarily lack[s] the evil intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362 (discussing Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546-47, 37 L.Ed. 419 (1893)). That principle applies equally to § 1512(c)(2), because without knowledge of the forfeiture proceeding, Friske could not know that his actions were likely to affect it. We recognize that § 1512(f)(1) provides that “[f]or the purposes of [§ 1512] ... an official proceeding need not be pending or about to be instituted at the time of the offense.” But, as the Supreme Court observed in Arthur Andersen, “[i]t is ... one thing to say that a proceeding need not" }, { "docid": "23394476", "title": "", "text": "plain error analysis); accord United States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001) (en banc). To be sure, 18 U.S.C. § 1512(f)(1) states that “[f]or purposes of this section,” which includes § 1512(b), “an official proceeding need not be pending or about to be instituted at the time of the offense.” See United States v. Gonzalez, 922 F.2d 1044, 1055-56 (2d Cir.1991) (holding that § 1512 reaches conduct intended to prevent communication of information during investigatory stage). Nevertheless, in Arthur Andersen LLP v. United States, a § 1512(b) case, the Supreme Court ruled that there was a difference between saying that a judicial proceeding “need not be pending or about to be instituted” and saying that a proceeding “need not even be foreseen.” 544 U.S. 696, 707-08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) (internal quotation marks omitted). The Court ruled that a defendant could not act with the mens rea necessary to violate § 1512(b) if, when engaging in the obstructive conduct “he does not have in contemplation any particular official proceeding in which [the obstructed information] might be material.” Id. at 708, 125 S.Ct. 2129. Following Arthur Andersen, this court in United States v. Quattrone, 441 F.3d 153, 180-81 (2d Cir.2006), identified error in an instruction that told a jury that it need not find any nexus between the defendant’s actions and the pending investigations to convict him of obstruction pursuant to § 1512(b). The trial record indicates that the challenged language in this case was proposed by the government, endorsed by the defendant, and included in the charge by the district court in order specifically to ensure the nexus finding specified in Arthur Andersen. To the extent the charge may have imposed an intent requirement beyond that strictly required by Arthur Andersen — a point we need not conclusively decide on this appeal — Hertular does not even attempt to show that he was prejudiced by the district court placing a heavier burden on the government, see United States v. Kaplan, 490 F.3d 110, 124 (2d Cir.2007) (noting that “defendant asserting plain error” generally “bears the" }, { "docid": "408932", "title": "", "text": "from false alibi witnesses while incarcerated on state charges relating to the theft of the truck. With respect to this conviction, Petruk argues that the evidence was insufficient to prove his intent to impair an “official proceeding.” Petruk relies primarily on the Supreme Court’s decisions in United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), and Arthur Andersen, LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), in arguing that the Government was required to prove that he contemplated a particular, foreseeable federal proceeding at the time he engaged in his obstructive conduct in order to convict him under 18 U.S.C. § 1512(c)(2). We have never decided whether the nexus requirement articulated in Aguilar and Arthur Andersen applies to § 1512(c)(2). . At issue in Aguilar was the catchall provision of a jury tampering statute, which makes it a crime to “ ‘corruptly or by threats or force, or by any threatening letter or communication, influence!], obstruct!], or impede!], or endeavor!] to influence, obstruct, or impede, the due administration of justice.’ ” 515 U.S. at 598, 115 S.Ct. 2357 (quoting 18 U.S.C. § 1503). The Court construed the provision as requiring the charged conduct to “have a relationship in time, causation, or logic with the judicial proceedings.” Id. at 599, 115 S.Ct. 2357. To satisfy this requirement, the defendant’s conduct must have the “ ‘natural and probable effect’ of interfering with the due administration of justice.” Id. (quoting United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993)). This nexus requirement, the Court stated, ensures a certain degree of “metes and bounds on the very broad language of the catchall provision.” Id. In Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129, the Court extended the nexus requirement to certain provisions of 18 U.S.C. § 1512 which make it a crime to “knowingly use[ ] intimidation, threaten! ], or corruptly persuade!] another person ... with intent to ... cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” 18 U.S.C. §§ 1512(b)(2)(A) and (B)." }, { "docid": "408933", "title": "", "text": "impede, the due administration of justice.’ ” 515 U.S. at 598, 115 S.Ct. 2357 (quoting 18 U.S.C. § 1503). The Court construed the provision as requiring the charged conduct to “have a relationship in time, causation, or logic with the judicial proceedings.” Id. at 599, 115 S.Ct. 2357. To satisfy this requirement, the defendant’s conduct must have the “ ‘natural and probable effect’ of interfering with the due administration of justice.” Id. (quoting United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993)). This nexus requirement, the Court stated, ensures a certain degree of “metes and bounds on the very broad language of the catchall provision.” Id. In Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129, the Court extended the nexus requirement to certain provisions of 18 U.S.C. § 1512 which make it a crime to “knowingly use[ ] intimidation, threaten! ], or corruptly persuade!] another person ... with intent to ... cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” 18 U.S.C. §§ 1512(b)(2)(A) and (B). The Court reasoned that it is “one thing to say that a proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and quite another to say a proceeding need not even be foreseen.” Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129. The Court concluded that a defendant cannot be convicted under §§ 1512(b)(2)(A) and (B) unless he or she “contémplateos]” a “particular official proceeding” in which the documents at issue might be material. Id. at 708; 125 S.Ct. 2129. Relying on Aguilar and Arthur Andersen, many of our sister circuits have applied the nexus requirement to 18 U.S.C. § 1512(c)(2). See, e.g., United States v. Tyler, 732 F,3d 241, 249-50 (3d Cir.2013) (applying the nexus requirement to “any prosecution brought under a § 1512 provision charging obstruction of justice involving an ‘official proceeding’ ”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S.-, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v." }, { "docid": "17352028", "title": "", "text": "we expressly held that the nexus requirement for official proceedings extends to § 1512(b)(1) and implied that the nexus requirement would apply likewise to other obstructive conduct involving an official proceeding proscribed by § 1512. We similarly conclude here that in any prosecution brought under a § 1512 provision charging obstruction of justice involving an “official proceeding,” the government is required to prove a nexus between the defendant’s conduct and a particular official proceeding before a judge or court of the United States that the defendant contemplated. Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129. This holding is in line with our sister Circuits that have all concluded that the nexus requirement applies to other § 1512 provisions qualified by an official proceeding. See United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S. —, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); Phillips, 583 F.3d at 1263-64 (same); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (same); Matthews, 505 F.3d at 707-08 (applying nexus requirement to § 1512(c)(1)); United States v. Kaplan, 490 F.3d 110, 126 (2d Cir.2007) (applying nexus requirement to § 1512(b)(1)). Having considered the effect of Arthur Andersen on the § 1512 official proceeding provisions, we now must examine whether the evidence in the record is consistent with Tyler’s claim that he is actually innocent of violating § 1512’s official proceeding provisions. We emphasize that our review “does not amount to a determination of whether there is sufficient evidence to convict,” but only considers whether the evidence supports Tyler’s actual innocence claim “such that remand is required to allow [him] an opportunity to establish his actual innocence.” Garth, 188 F.3d at 110. We believe that it does. In Shavers, we considered the evidence presented at trial and concluded that it was insufficient as a matter of law to satisfy the official proceedings requirement because the defendant’s conduct was directed at preventing a witness from testifying in a state court proceeding" }, { "docid": "22952146", "title": "", "text": "that § 1512(c)(2) also contains a nexus requirement as articulated in Aguilar. See Phillips, 583 F.3d at 1264; United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007); see also United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that Aguilar nexus requirement applies to § 1512(c)(2)). Aguilar relied on the principle that “a person lacking knowledge of a pending proceeding necessarily lack[s] the evil intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362 (discussing Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546-47, 37 L.Ed. 419 (1893)). That principle applies equally to § 1512(c)(2), because without knowledge of the forfeiture proceeding, Friske could not know that his actions were likely to affect it. We recognize that § 1512(f)(1) provides that “[f]or the purposes of [§ 1512] ... an official proceeding need not be pending or about to be instituted at the time of the offense.” But, as the Supreme Court observed in Arthur Andersen, “[i]t is ... one thing to say that a proceeding need not be pending or about to be instituted at the time of the offense, and quite another to say a proceeding need not even be foreseen.” 544 U.S. at 707-08, 125 S.Ct. at 2137 (quotation marks omitted). Thus, in this case, the government was required to prove that Friske knew of, or at least foresaw, the forfeiture proceeding. In support of his motion for judgment of acquittal before the District Court, Friske conceded that “there [was] plenty of evidence [from which] the jury can conclude that he went under the deck to retrieve three items for Mr. Erickson,” but insisted that “there [was] not one scintilla of evidence that he knew he was obtaining something that was subject to forfeiture.” We agree. Although Friske was certainly acting suspiciously in his attempts to recover the three sealed PVC pipes from under the pool deck, more is required to prove a violation of § 1512(c)(2). Specifically, the government had to prove beyond a reasonable doubt that Friske knew that the natural and probable result of his actions would" }, { "docid": "17352026", "title": "", "text": "it would apply to an official proceeding provision, § 1512(b)(1). We concluded that for the same reasons that Arthur Andersen’s nexus requirement does not apply to the investigation-related communication provisions, it would be “illogical” to apply Fowler’s reasonable likelihood requirement in the context of prosecutions under the official proceeding provisions. Id. at 379. Instead, we recognized that each of the § 1512 categories was subject to a different set of requirements, concluding that “there are at least two lines of jurisprudence developing separately under the VWPA: one for the investigation-related provisions, such as § 1512(b)(3) and (a)(1)(C), and one for the ‘official proceeding’ provisions, such as § 1512(b)(1) and (b)(2).” Id. D. Effect of Intervening Supreme Court Decisions on Tyler’s Convictions 1. Official Proceeding: Nexus Requirement Tyler contends that his conduct has been rendered non-criminal by the Supreme Court’s decision in Arthur Andersen because there was no evidence from which the Government could establish a nexus with an official proceeding. The District Court, though, held that Arthur Andersen did not establish that Tyler was actually innocent of his witness tampering offenses. It recognized that other Circuits have held that Arthur Andersen’s nexus requirement applies to other VWPA provisions containing the official proceedings language. United States v. Tyler, No. 1:96-CR-106, 2012 WL 951479, at *9 (M.D.Pa. Mar. 20, 2012) (citing United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) and United States v. Matthews, 505 F.3d 698, 707-08 (7th Cir.2007)). However, it reasoned that because the conduct at issue in Arthur Andersen was “by itself not inherently wrong,” a nexus requirement was necessary to ensure that “innocent conduct is not punished,” whereas Tyler’s conduct involved “consciousness of wrongdoing” so no such nexus requirement was necessary. Id., at *9-10. Thus, it disagreed with the holdings of these Circuits and held that ArtI J,r Andersen’s nexus requirement does not apply to § 1512(a)(1)(A) and (C) and § 1512(b)(1) and (b)(3), because “Arthur Andersen has not altered the legal landscape for all section 1512 offenses.” Id., at *10. The District Court’s holding is in sharp contrast with our subsequent holding in Shavers. There" }, { "docid": "17352022", "title": "", "text": "be before “a judge or court of the United States.” Id. § 1515(a)(1)(A). A law enforcement officer includes “an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.” Id. § 1515(a)(4). Tyler was convicted of tampering with a witness by murder in violation of an official proceeding provision and an investigation-related communication provision (Count 2). He was also convicted of tampering with a witness by intimidation and threats in violation of two official proceeding provisions and an investigation-related communication provision (Count 3). C. Judicial Limitations on Use of Victim and Witness Protection Act The Supreme Court addressed certain provisions of § 1512 in Arthur Andersen and Fowler, and we recently reconciled the Supreme Court’s holdings in those two cases in United States v. Shavers, 693 F.3d 363 (3d Cir.2012), vacated on other grounds by Shavers v. United States, — U.S. —, 133 S.Ct. 2877, 186 L.Ed.2d 902 (2013). We will review these holdings to determine whether they render Tyler’s conduct non-criminal. 1. Limitations from Arthur Andersen and Fowler The Supreme Court’s decision in Arthur Andersen required that for the government to satisfy the VWPA’s witness intimidation section’s “official proceeding” requirement, § 1512(b)(2)(A) and (B), it must prove a “nexus” between the defendant’s conduct and a foreseeable particular proceeding. Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129. Specifically, the government must prove that the defendant sought to interfere with evidence or a witness and acted “in contemplation [of a] particular official proceeding.” Id. at 708, 125 S.Ct. 2129. “[I]f the defendant lacks knowledge that his actions are likely to affect the [official] proceeding,” then “he lacks the requisite intent to obstruct.” Id. (internal quotation marks omitted). The “official proceeding” language is also contained in § 1512(a)(1)(A), (b)(1), and (b)(2), the provisions under which Tyler was convicted. In 2011, the Supreme Court in Fowler analyzed the investigation-related communication provision in the VWPA’s witness murder section, § 1512(a)(1)(C), which requires that the murder of a witness is intended to “prevent" } ]

[ { "docid": "7626092", "title": "", "text": "the contract was made, in a suit of the complainant against John H. Wood-bury. The rights of Wm. A. Woodbury to use his own name were not any more surrendered by the contract of 1901 than were the rights of John FI. Woodbury to use his name, both of whom were parties thereto. The Court of Appeals in that case (197 N. Y. 66, 90 N. E. 344) said: “The contract which is the basis of the plaintiff’s right to use the name ‘Woodbury’ entitled them to use that name only when applied to the several commodities expressly specified therein. It leaves the defendants entitled to use that name as applied to any other articles which they manufacture and sell, except such as so resemble the articles specified in the contract that they are calculated to deceive and mislead the public to believe that they are identical with those named in the contract. The trial court has found that the article manufactured and sold by the defendants as ‘Woodbury’s New Skin Soap’ is thus calculated to deceive and mislead the public. That finding has been unanimously affirmed by the Appellate Division, and hence is conclusive upon this court. It follows that the injunction embodied in the judgment is right, so far as it is effectual to restrain the defendants from using the name ‘Wood-bury’ in connection with any of the articles specified in the contract and also so far as it restrains them from making and selling ‘Woodbury’s New Skin Soap.’ It goes too far, however, in forbidding the defendants from using the name ‘Woodbury’ on other soaps or in connection with other articles where such use is not deceptive or misleading.” Having ascertained the rights of the complainant in the name and mark there remains to be determined only whether those rights have been infringed by the defendants or any of them. This issue depends upon the acts and doings of the several defendants as disclosed by the evidence. The complainant admits that there is no evidence sustaining its charges of infringement against Woodbury System, Inc., and that as" } ]

[ { "docid": "14404937", "title": "", "text": "bottom. Royal Baking Powder Co. v. Royal, 122 F. 337 (C. C. A. 6). Similar principles apply to the statements on the wrappers referring to Wm. A. Woodbury as managing director and president of the celebrated Dermatological Institute founded by the late John H. Woodbury. It is urged that a man is privileged to tell the truth about himself and that this statement does no more. But a half-truth is often as deceptive as a falsehood. For years the names of John H. Woodbury and his Institute have been associated in the public mind with the soap known as Woodbury’s Facial Soap, or Woodbury Soap. A reference to these names on the wrapper of a soap made by another Woodbury would necessarily cause confusion as to the source of the article, and we have no doubt the trial judge was right in finding that this was the intended result. See paragraph 7 of the Chickering injunction. Chickering v. Chickering & Sons (C. C. A.) 215 F. 501. The views we have expressed are in substantial accord with those found in the opinion of the learned District Court. Wo think, however, that these views are not fully carried out in the phraseology of the injunction. The first two paragraphs quoted in the statement of facts should be modified to read as follows: From selling, offering for sale, or putting on the market, directly or indirectly, any soap intended for facial use with a wrapper or other advertising on which the name “Wood-bury” or “Woodbury’s” appears as part of the title or name of the soap, or from using the name “William A. Woodbury,” or any abbreviated form thereof, except upon the back or sides of the wrapper or package, and accompanied by a plain disclosure that said William A. Woodbury is not connected with the makers of “Woodbury’s Facial Soap,” and that his soap is not Woodbury’s Facial Soap, or some new brand thereof. From selling or offering for sale, manufacturing, or wrapping, soap intended for facial use upon the wrapper of which, inclosing advertisement or otherwise, there appears a reference" }, { "docid": "7626093", "title": "", "text": "to deceive and mislead the public. That finding has been unanimously affirmed by the Appellate Division, and hence is conclusive upon this court. It follows that the injunction embodied in the judgment is right, so far as it is effectual to restrain the defendants from using the name ‘Wood-bury’ in connection with any of the articles specified in the contract and also so far as it restrains them from making and selling ‘Woodbury’s New Skin Soap.’ It goes too far, however, in forbidding the defendants from using the name ‘Woodbury’ on other soaps or in connection with other articles where such use is not deceptive or misleading.” Having ascertained the rights of the complainant in the name and mark there remains to be determined only whether those rights have been infringed by the defendants or any of them. This issue depends upon the acts and doings of the several defendants as disclosed by the evidence. The complainant admits that there is no evidence sustaining its charges of infringement against Woodbury System, Inc., and that as to it the bill should be dismissed. There is no evidence showing that Woodbury, Inc., has infringed any rights of the complainant (however broad those rights may be), but complainant contends that it has threatened to infringe and bases this contention upon an advertisement of and a circular issued by one Whiter J. Pierce & Co. It is unnecessary to determine whether or not the circular or advertisement, if authorized by Wood-bury, Inc., would constitute a threat to infringe, for I am unable to conclude from the evidence that the advertisement or circular were in any sense sanctioned by that defendant. The bill as to it should be dismissed, without regard to the limited scope of complainant’s rights in the name and mark. The Distributors has been actively engaged in business. It sold under its own name, “Wm. A. Woodbury Distributors, Inc.,” or under the name “Wm. A. Woodbury,” some articles by virtue of the rights which it acquired from Wm. A. Woodbury. The Distributors has not used upon such articles the neckless head trade-rmark." }, { "docid": "14404938", "title": "", "text": "accord with those found in the opinion of the learned District Court. Wo think, however, that these views are not fully carried out in the phraseology of the injunction. The first two paragraphs quoted in the statement of facts should be modified to read as follows: From selling, offering for sale, or putting on the market, directly or indirectly, any soap intended for facial use with a wrapper or other advertising on which the name “Wood-bury” or “Woodbury’s” appears as part of the title or name of the soap, or from using the name “William A. Woodbury,” or any abbreviated form thereof, except upon the back or sides of the wrapper or package, and accompanied by a plain disclosure that said William A. Woodbury is not connected with the makers of “Woodbury’s Facial Soap,” and that his soap is not Woodbury’s Facial Soap, or some new brand thereof. From selling or offering for sale, manufacturing, or wrapping, soap intended for facial use upon the wrapper of which, inclosing advertisement or otherwise, there appears a reference to either “John H. Wood-bury” or the “Woodbury Dermatological Institute,” unless there shall also appear a plain disclosure that the plaintiff is the successor of said John H. Woodbury and said Institute in the manufacture and sale of “Woodbury’s Facial Soap.” The third paragraph should be limited by inserting after the word “soap,” where it first appears in said paragraph, the words “intended for facial use.” To the fourth paragraph should be added the following: Or any other label, package, or representation which by imitation, color, or otherwise is calculated to cause defendant’s goods to be passed off as and for the plaintiff’s. In other respects, the decree is correct, and, as thus modified, it is affirmed, with costs to the Andrew Jergons Company." }, { "docid": "7626059", "title": "", "text": "New York corporation of similar name is not in issue, they will be considered herein as a single entity and referred to as the complainant, or the Jergens Company.) Prior to 1901 John H. Wood-bury and the John PI. Woodbury Dermatological Institute were successively the owners of and engaged in the business of making and selling certain proprietary medicated dermatological preparations and toilet articles of the general class of detergents, including, among other tilings, soap, creams, powders, shampoos, tonics, and lotions, all of which were adapted for use in the care of the human skin, hair, or teeth. The mark was first adopted by John H. Woodbury and used upon the package or receptacle for each commodity. As stated by the complainant: “lie appropriated that symbol as a marlr of the entire class of toilet articles and preparations.” The essential feature of the mark, the neckless head, was usually-accompanied, above, by the words “John H. Woodbury’s” which were immediately followed by the name of the commodity upon which the mark was being used. Beneath, and at the sides of the head, printed matter in the nature of directions for using the article ordinarily ap • paired. In the year 1889 John II. Woodbury caused that mark, accompanied by his name and other printed matter, as above indicated, to be registered (serial No. 16,958) for facial soap. The next year he caused the John H. Woodbury Dermatological Institute to be incorporated in New York, and in consideration of its entire capital stock transferred to it all his rights, trade-marks, and good will. The Institute prospered. It manufactured and sold, not only the eight articles thereafter sold to the Jergens Company, but many others of the same general class. It also became engaged in the business of treating persons for facial blemishes and deformities and for diseases of the skin. Wm. A. Woodbury and McCargo were employees and stockholders of the Institute, and had, possibly, acquired through John H. Woodbury, to whom certain rights were reassigned by the Institute, some interest- in one or mere of the commodities. Such, in brief, were" }, { "docid": "19048918", "title": "", "text": "v. Snow Crest Beverages, 64 F.Supp. 980 (D.Mass.1946), aff’d. 162 F.2d 280 (1st Cir.), cert. denied 332 U.S. 809, 68 S.Ct. 110, 92 L.Ed. 386 (1947); a defendant’s accountability under the contributory infringer doctrine « * * * turns on the issue whether a reasonable person in the defendant’s position would realize either that he himself had created a situation which afforded a temptation to or an opportunity for wrong by l’homme moyen sensuel or was dealing with a customer whom he should know would be peculiarly likely to use the defendant’s product wrongfully.” 64 F.Supp. at 989. For example, Andrew Jergens Co. v. Bonded Products Corp., supra, was an action for trademark infringement and unfair competition brought by the manufacturer of “Wood-bury’s Facial Soap” against another soap manufacturer. The defendant in that case manufactured and packaged soap for and according to the instructions of its customer, William A. Wood-bury. The soap supplied by the defendant was marketed under various labels all of which had in common a prominent reference to the name Woodbury. Widespread confusion between plaintiff’s soap and that manufactured by defendant existed in the public mind,, and this confusion was found to have been intentionally caused by defendant’s customer. In affirming the grant of a preliminary injunction against defendant, the Court of Appeals rejected the defendant’s argument that, being merely the manufacturer, without more, it could not be held responsible for the confusion caused by William A. Woodbury. The Court said “If, therefore, the soap as wrapped and delivered by defendant to Woodbury or on his order is likely to deceive the ultimate purchasers and come into unfair competition with plaintiff’s product and does do so, we have no doubt that defendant is liable as a contributory in-fringer.” 21 F.2d at 424 (citations omitted) Regarding the facts of the case at bar, the ovenware manufactured by Jeannette, both in name and appearance, bears such a marked resemblance to plaintiff’s product that the similarity is difficult to ascribe to mere chance. In these circumstances, the prospect that a jury could conclude that Jeannette should have realized that manufacture" }, { "docid": "14404933", "title": "", "text": "615, 68 L. Ed. 1161; Nims, Unfair Competition (2d Ed.) 667. The learned District Court has found that the plaintiff’s Woodbury’s Facial Soap was the first to become and remains to-day the best known Woodbury soap on the market; that there is a widespread confusion between the soap of the plaintiff and the Wm. A. Woodbury soaps manufactured by defendant, the public believing that the one source is the original Woodbury and his Institute; and that this confusion has been intentionally caused by William A. Woodbury by subtle advertising arid the use of the wrappers complained of. We think the evidence clearly supports these findings. While certain recent advertisements of plaintiff’s soap give’ basis for the argument that plaintiff is emphasizing the name “Woodbury Soap,” instead of “Woodbury’s Facial Soap,” for its product, this falls far short of sustaining the contention that the confusion between plaintiff’s and defendant’s goods has been brought about by the plaintiff itself. Even in the days when the soap was sold and advertised by the Institute, the name “Woodbury” was the feature of such advertisements. See Jurgens Co. v. Woodbury, 56 Misc. Rep. 404, 106 N. Y. S. 571. From the foregoing findings of fact, injunctive relief should follow, for such conduct is contrary to the law of fair dealing. The principle that “no man has a right to represent his goods as the goods of another” is applicable to misrepresentations by the use of a proper name, as well as by other means, even though the name be one which the defendant would ordinarily be privileged to use. Rogers Co. v. Wm. Rogers Mfg. Co., 70 F. 1017 (C. C. A. 2); Clark Thread Co. v. Armitage, 74 F. 936, 943 (C. C. A. 2); Walter Baker & Co., Limited, v. Sanders, 80 F. 889 (C. C. A. 2); Vick Medicine Co. v. Vick Chemical Co., 11 F.(2d) 33 (C. C. A. 5); Garrett v. T. H. Garrett & Co., 78 F. 472 (C. C. A. 6); Royal Baking Powder Co. v. Royal, 122 F. 337 (C. C, A. 6); Chickering v. Chickering &" }, { "docid": "14404923", "title": "", "text": "of the plaintiff, except for the name “Woodbury,” which is prominently displayed on each box and cake; and that the public is likely to be misled. The injunction restrained the sale' of any soap under the name “Woodbury,” or under any name which contained Woodbury as any part thereof. This injunction was affirmed by the Appellate Division without opinion. 128 App. Div. 924, 112 N. Y. S. 1121. The Court of Appeals modified the injunction, so as to enjoin “selling or offering for sale the soap known as Woodbury’s New Skin Soap, or any other soap under such a name or designation, or put up or prepared in such a manner as to be calculated to lead the public or trade to believe that in purchasing said soap they are purchasing Woodbury’s Facial Soap or a new brand thereof.” The opinion states that the injunction was right in restraining the defendants from making and selling “Woodbury’s New Skin Soap,” because the trial court found this calculated to mislead the public. But it said that the injunction went too far in forbidding the use of the name “Woodbury” on any soap, because under the contract of 1901 the plaintiff had acquired only the Facial Soap, and therefore John H. Woodbury still had the privilege of using his own name on other soaps in a manner not calculated to deceive the public into thinking them to-be identical with the plaintiff’s Facial Soap. This case is not, and could not be, claimed to be res adjudicata as against William A. Woodbury or those in privity with him. However, if it is to be followed by us, its holding would appear to be equally applicable to William A. Woodbury, who was also a party to the 1901 contract. The second decision is Andrew Jergens Co. v. Woodbury, Inc. (D. C. Del.) 273 F. 952. The complainant in this suit was the plaintiff in the suit at bar; the defendants were three Delaware corporations, Woodbury, Inc., .Woodbury System, Inc., and Wm. A. Woodbury Distributors, Inc. The opinion of Judge Morris describes this as a suit" }, { "docid": "14404926", "title": "", "text": "by the 1901 contract, it had used the neekless head trade-mark, but had not used it upon articles which were acquired by complainant under the 1901 contract. Among the articles upon which the trade-mark had not been used were “Wm. A. Woodbury Hleen Odor Soap, Wm. A. Woodbury Sea Maid Soap, Wm. A. Woodbury Olive and Palm Soap, Wm. A. Woodbury Dentate, and Mercuric Iodide Soap.” Judge Morris said: “It cannot be denied that the evidence discloses that some confusion exists in the public mind as to the origin of the articles of the respective parties, yet, so far as I have been able to discover from the evidence, such confusion as does exist arises from the exercise of the legal rights of the respective parties, and not from any wrongful act of the Distributors. Such confusion seems wholly attributable to the fact that two separate and distinct corporations, deriving their title from a common source, have the right to use the same mark and name upon different articles and preparations of the same general class, and to the further fact that an individual has, subject to certain conditions (observed, I think, by the Distributors), the right to use his name in his business, although his surname may have acquired a secondary meaning, and to transfer that business to a corporation bearing his name.” He then states that the test of infringement was decided in the New York case already discussed and that measured by that test no infringement is here shown. He concludes : “While I have given this limited detailed consideration to the question of infringement of complainant’s rights by the Distributors, I do not understand the complainant to contend that the defendants or any of them have violated or threatened to violate any rights which the Jergens Company claims under the 1901 contract, its charges of infringement having been predicated mainly, if not entirely, upon the hypothesis that it has the sole asid exclusive right to use the neekless head trade-inark and the name ‘Woodbury’ upon toilet articles and dermatological preparations.” Therefore the bill was dismissed. This" }, { "docid": "14404925", "title": "", "text": "to enjoin alleged trade-mark infringement and unfair competition; the Jergens Company asserting a right to the exclusive use of the name “Woodbury” or “Woodbury’s” and of the neekless head trade-mark in connection with toilet articles generally, and not solely in connection with the eight commodities specified in the 1901 contract. The claim in respect to toilet articles not specified in the 1901 contract was based upon an assignment in 1909 by the trastee in bankruptcy of the Institute. After an extended examination of the complainant’s claims, the judge concluded that its only rights in the trade-mark and in the name “Woodbury” were those acquired by the contract of 1901. He then proceeded to the issue whether those rights had been shown to be infringed. As to two of the defendants there was no evidence of infringement, but Wm. A. Woodbury Distributors, Inc., had, under its own name or that of Wm. A. Wood-bury, sold some articles by virtue of rights acquired from him. The judge found that, when selling goods not of the species covered by the 1901 contract, it had used the neekless head trade-mark, but had not used it upon articles which were acquired by complainant under the 1901 contract. Among the articles upon which the trade-mark had not been used were “Wm. A. Woodbury Hleen Odor Soap, Wm. A. Woodbury Sea Maid Soap, Wm. A. Woodbury Olive and Palm Soap, Wm. A. Woodbury Dentate, and Mercuric Iodide Soap.” Judge Morris said: “It cannot be denied that the evidence discloses that some confusion exists in the public mind as to the origin of the articles of the respective parties, yet, so far as I have been able to discover from the evidence, such confusion as does exist arises from the exercise of the legal rights of the respective parties, and not from any wrongful act of the Distributors. Such confusion seems wholly attributable to the fact that two separate and distinct corporations, deriving their title from a common source, have the right to use the same mark and name upon different articles and preparations of the same general" }, { "docid": "14404924", "title": "", "text": "injunction went too far in forbidding the use of the name “Woodbury” on any soap, because under the contract of 1901 the plaintiff had acquired only the Facial Soap, and therefore John H. Woodbury still had the privilege of using his own name on other soaps in a manner not calculated to deceive the public into thinking them to-be identical with the plaintiff’s Facial Soap. This case is not, and could not be, claimed to be res adjudicata as against William A. Woodbury or those in privity with him. However, if it is to be followed by us, its holding would appear to be equally applicable to William A. Woodbury, who was also a party to the 1901 contract. The second decision is Andrew Jergens Co. v. Woodbury, Inc. (D. C. Del.) 273 F. 952. The complainant in this suit was the plaintiff in the suit at bar; the defendants were three Delaware corporations, Woodbury, Inc., .Woodbury System, Inc., and Wm. A. Woodbury Distributors, Inc. The opinion of Judge Morris describes this as a suit to enjoin alleged trade-mark infringement and unfair competition; the Jergens Company asserting a right to the exclusive use of the name “Woodbury” or “Woodbury’s” and of the neekless head trade-mark in connection with toilet articles generally, and not solely in connection with the eight commodities specified in the 1901 contract. The claim in respect to toilet articles not specified in the 1901 contract was based upon an assignment in 1909 by the trastee in bankruptcy of the Institute. After an extended examination of the complainant’s claims, the judge concluded that its only rights in the trade-mark and in the name “Woodbury” were those acquired by the contract of 1901. He then proceeded to the issue whether those rights had been shown to be infringed. As to two of the defendants there was no evidence of infringement, but Wm. A. Woodbury Distributors, Inc., had, under its own name or that of Wm. A. Wood-bury, sold some articles by virtue of rights acquired from him. The judge found that, when selling goods not of the species covered" }, { "docid": "7626086", "title": "", "text": "wrote many articles for newspaper syndicates. As one skilled in the care of the person he acquired an extensive reputation. Originally it was the purpose of Wm. A. Woodbury not to engage in the manufacture and sale of toilet articles, hut his several publications brought to him numerous requests for preparations to be used in the care of the person. Consequently he began furnishing to such inquirers preparations- put up by himself, and he continued so to do until he made his arrangement with the Distributors. Included among his' preparations were soaps, creams, powders, and similar articles. The rights which the Woodbury Company undertook to confer upon the Distributors, and which the’'latter now claims consist of the selling agency for all the products which the Woodbury Company had the right to manufacture under the contract of 1905, the right to use thereon the neckless head trade-mark, including the name “John H. Wood-bury” and the name “Woodbury.” The rights that Wm. A. Woodbury undertook to confer upon the Distributors, and which the latter now claims, consist of the right to use the name “Wm. A. Woodbury” as part of its corporate name, the right to use that name on toilet preparations sold by it, the right to avail itself of the knowledge of Wm. A. Woodbury, acquired in the business of the Institute from 1892 to 1908, the right to utilize the name “Wm. A. Woodbury” and his reputation, acquired by and resulting from his widely distributed publications during the period of approximately 10 years beginning about 1909, and the right to utilize the good will and business of Wm. A. Woodbury in the. sale of toilet preparations marketed by him during the same period. The contention of the complainant that the Distributors, in so far as, it claims through the Woodbury Company, is estopped from asserting that the Woodbury Company is possessed of any rights under the 1905 contract, by reason of certain acts and statements of Wm. A. Woodbury, is based upon affidavits and pleadings of Wm. A. Wood-bury of an alleged contrary tenor, filed by him or on" }, { "docid": "14404935", "title": "", "text": "Sons, 215 F. 490 (C. C. A. 7); Jergens Co. v. Woodbury, 197 N. Y. 66, 90 N. E. 344. As Mr. Justice Holmes says in Waterman Co. v. Modern Pen Co.,, 235 U. S. 88, 94, 35 S. Ct. 91, 92 (59 L. Ed. 142): “There is no distinction between corporations and natural persons in the principle, which is to prevent a fraud.” We come, then, to the precise terms of the injunction. We may premise our remarks with the statement that, if any relief is to be given against unfair trading, it should be such as will be effective. See Warner & Co. v. Lilly & Co., supra; Chickering v. Chickering & Sons, supra. The proof shows that the name “Woodbury,” as applied to soap suitable for the face, means the long familiar, facial soap of the neekless head Woodbury, or his successors in business, and that featuring, the name “Woodbury” on defendant’s goods leads to confusion. Therefore, to be effective, the injunction should forbid the use of that name as part of the title or designation under which defendant’s soap is to be marketed. The cases involving Baker’s chocolate — Walter Baker & Co. v. Sanders, 80 F. 889 (C. C. A. 2), and Walter Baker & Co. v. Slack, 130 F. 514 (C. C. A. 7) — go almost this far, though perhaps not quite, since there permission was given to add a distinguishing suffix. In the Chickering Case the defendants were forbidden to use “Chickering” as the name of their piano. The individual has, however, the privilege of using his own name in a manner which is not unfair trading. Therefore Wm. A. Woodbury may say that the soap he sells is manufactured by or for him, provided'he does so in a way to avoid confusion, as, for example, by the phrase, “Hot connected with the makers of ‘Woodbury’s Soap.’ ” See the Waterman Pen Case, and Baker’s Chocolate Cases, supra. We should also be justified in requiring that his name should not appear upon the top of the wrapper, but on the sides or" }, { "docid": "14404922", "title": "", "text": "SWAN, Circuit Judge (after stating the faets as above). The defendant contends that it is privileged to do whatever William. A. Woodbury may lawfully do, and that prior litigation has already adjudicated that plaintiff cannot enjoin William A. Woodbury from trading in the manner complained of. This requires a somewhat detailed examination of the prior litigation. The first case in point of time is Jergens Co. v. Woodbury, 197 N. Y. 66, 90 N. E. 344. This was a suit brought by plaintiff’s predecessor in 1907 against John H. Woodbury and the Woodbury-McGrath Company to prevent their marketing soap as “Woodbury’s New Skin Soap.” The opinion of the Special Term appears in 56 Misc. Rep. 404, 106 N. Y. S. 571. It refers to the contract of 1901 and finds that the Facial Soap transferred thereby was known as Woodbury’s Facial Soap and Woodbury Soap, and that in advertisements of it the name of Woodbury was the feature; that the wrapper and box of the defendants’ product are not identical with the wrapper and box of the plaintiff, except for the name “Woodbury,” which is prominently displayed on each box and cake; and that the public is likely to be misled. The injunction restrained the sale' of any soap under the name “Woodbury,” or under any name which contained Woodbury as any part thereof. This injunction was affirmed by the Appellate Division without opinion. 128 App. Div. 924, 112 N. Y. S. 1121. The Court of Appeals modified the injunction, so as to enjoin “selling or offering for sale the soap known as Woodbury’s New Skin Soap, or any other soap under such a name or designation, or put up or prepared in such a manner as to be calculated to lead the public or trade to believe that in purchasing said soap they are purchasing Woodbury’s Facial Soap or a new brand thereof.” The opinion states that the injunction was right in restraining the defendants from making and selling “Woodbury’s New Skin Soap,” because the trial court found this calculated to mislead the public. But it said that the" }, { "docid": "14404932", "title": "", "text": "according to a particular formula. See, also, Le Blume Import Co. v. Coty, 293 F. 344, 360 (C. C. A. 2). The defendant also argues that it is not responsible for deception which may be practiced in the sale of the soap because it merely manufactured it for William A. Woodbury. Defendant knew, however, that plaintiff manufactured and sold “Woodbury’s Facial Soap.” If, therefore, the soap as wrapped and delivered by defendant to Woodbury or on his order is likely to deceive the ultimate purchasers and come into unfair competition with plaintiff’s product and does do so, we have no doubt that defendant is liable as a contributory infringer. N. K. Fairbank Co. v. Bell. Mfg. Co., 77 F. 869, 878 (C. C. A. 2); Von Mumm v. Frash, supra; Wolf Bros. & Co., v. Hamilton-Brown Shoe Co., 206 F. 611 (C. C. A. 8); Guggenheim v. Cantrell & Cochrane, Limited, 56 App. D. C. 100, 10 F.(2d) 895, 897; Warner & Co. v. Lilly & Co., 265 U. S. 526, 530, 44 S. Ct. 615, 68 L. Ed. 1161; Nims, Unfair Competition (2d Ed.) 667. The learned District Court has found that the plaintiff’s Woodbury’s Facial Soap was the first to become and remains to-day the best known Woodbury soap on the market; that there is a widespread confusion between the soap of the plaintiff and the Wm. A. Woodbury soaps manufactured by defendant, the public believing that the one source is the original Woodbury and his Institute; and that this confusion has been intentionally caused by William A. Woodbury by subtle advertising arid the use of the wrappers complained of. We think the evidence clearly supports these findings. While certain recent advertisements of plaintiff’s soap give’ basis for the argument that plaintiff is emphasizing the name “Woodbury Soap,” instead of “Woodbury’s Facial Soap,” for its product, this falls far short of sustaining the contention that the confusion between plaintiff’s and defendant’s goods has been brought about by the plaintiff itself. Even in the days when the soap was sold and advertised by the Institute, the name “Woodbury” was" }, { "docid": "14404929", "title": "", "text": "Morris expressly so states. Third, there was no finding that the public was deceived into thinking the defendants’ goods were identical with complainant’s facial soap. Judge Morris stated the opposite. In the instant case the plaintiff does charge violation of its rights under the 1901 contract, and there is an express finding that the defendant’s soaps do deceive the public into believing they are plaintiff’s product. The issues and the evidence being different, the doctrine of res adjudieata can find no place. Even if it were conceded that the ease held that what Woodbury was then doing was not calculated to deceive the public into supposing that he was selling plaintiff’s facial soap, it is difficult to see how that could be conclusive of the issue whether what he is now doing is so calculated to deceive. It has been frequently said that, in controversies of this character, each case must, in a measure, he a law unto itself. See Von Mumm v. Frash (C. C. N. Y.) 56 F. 830, 835; Dennison Mfg. Co. v. Scharf Tag Label & Box Co. (C. C. A. 6) 121 F. 313, 318; Auto Acetylene Light Co. v. Prest-O-Lite Co. (C. C. A. 6) 264 F. 810, 815. A third case relied upon by defendant is Andrew Jergens Co. v. William A. Wood-bury. This was filed in the United States District Court for New Jersey at the same time as the bill in the Delaware district already diseussed. It was drawn on the same theory as to plaintiff’s rights. After the Delaware decision, the New Jersey bill was dismissed for lack of prosecution by tbe plaintiff. No evidence was introduced. The issue in the present suit was not, and could not have been, passed upon in that case. Wo agree, therefore, -with the learned District Court that it is still open, upon proof of facts, for a court of equity to ascertain whether or not a Woodbury, by himself or through another, is deceiving the public into thinking that his soap is plaintiff’s Facial Soap or a new brand thereof. The defendant further" }, { "docid": "7626095", "title": "", "text": "When selling articles acquired from the Woodbury Company, and other articles not of the species of any of the eight articles upon which the complainant has the exclusive right to use the neckless head, the Distributors has used thereon the neckless head trade-mark. As an illustration of the articles upon which the neckless head has been so used by the Distributors, there are found among the exhibits such articles as Clear Skin Lotion, Face and Hand Lotion, Acne Pimples Soothing Lotion, Hair Tonic, Liquid Shampoo; Mouth Elixir, Coarse Pore Lotion, Cleansing Massage Cream, Cold Cream, Heal Skin Ointment, and Complexion Tablets. As an illustration of the articles upon which the necldess head has not been used by the Distributors, there are found among the exhibits such articles as Wm. A. Woodbury Kleen Odor Soap, Wm. A. Woodbury Sea Maid Soap, Wm. A. Woodbury Olive and Palm Soap, Wm. A. Woodbury Dentate, and Mercuric Iodide Soap. It cannot be denied that the evidence discloses that some confusion exists in the public mind as to the origin of the articles of the respective parties, yet, so far as I have been able to discover from the evidence, such confusion as does exist arises from the exercise of the legal rights of the respective parties, and not from any wrongful act of the Distributors. Such confusion seems wholly attributable to the fact that two separate and distinct corporations, deriving their title from a common source, have the right to use the same mark and name upon different articles and preparations of the same general class, and to the further fact that an individual has, subject to certain conditions (observed, I think, by the Distributors), the right to use his name in his business, although his surname may have acquired a secondary meaning, and to transfer that business to a corporation bearing his name. Howe Scales Co. v. Wyckoff, Seamans, etc., 198 U. S. 118, 25 Sup. Ct. 609, 49 L. Ed. 972; Waterman Co. v. Modern Pen Co., 235 U. S. 88, 35 Sup. Ct. 91, 59 L. Ed. 142. What constitutes an" }, { "docid": "7626094", "title": "", "text": "to it the bill should be dismissed. There is no evidence showing that Woodbury, Inc., has infringed any rights of the complainant (however broad those rights may be), but complainant contends that it has threatened to infringe and bases this contention upon an advertisement of and a circular issued by one Whiter J. Pierce & Co. It is unnecessary to determine whether or not the circular or advertisement, if authorized by Wood-bury, Inc., would constitute a threat to infringe, for I am unable to conclude from the evidence that the advertisement or circular were in any sense sanctioned by that defendant. The bill as to it should be dismissed, without regard to the limited scope of complainant’s rights in the name and mark. The Distributors has been actively engaged in business. It sold under its own name, “Wm. A. Woodbury Distributors, Inc.,” or under the name “Wm. A. Woodbury,” some articles by virtue of the rights which it acquired from Wm. A. Woodbury. The Distributors has not used upon such articles the neckless head trade-rmark. When selling articles acquired from the Woodbury Company, and other articles not of the species of any of the eight articles upon which the complainant has the exclusive right to use the neckless head, the Distributors has used thereon the neckless head trade-mark. As an illustration of the articles upon which the neckless head has been so used by the Distributors, there are found among the exhibits such articles as Clear Skin Lotion, Face and Hand Lotion, Acne Pimples Soothing Lotion, Hair Tonic, Liquid Shampoo; Mouth Elixir, Coarse Pore Lotion, Cleansing Massage Cream, Cold Cream, Heal Skin Ointment, and Complexion Tablets. As an illustration of the articles upon which the necldess head has not been used by the Distributors, there are found among the exhibits such articles as Wm. A. Woodbury Kleen Odor Soap, Wm. A. Woodbury Sea Maid Soap, Wm. A. Woodbury Olive and Palm Soap, Wm. A. Woodbury Dentate, and Mercuric Iodide Soap. It cannot be denied that the evidence discloses that some confusion exists in the public mind as to the origin" }, { "docid": "14404931", "title": "", "text": "contends that the plaintiff should have no relief because it has not come into equity with clean hands. This is predicated upon plaintiff’s conduct in (1) having sold cold cream and shaving cream under the name “Woodbury,” which it acquired no right to do under the 1901 contract; and (2) having issued without right what it called a “Woodbury Book”; and (3) having changed the original formula of “John H. Woodbury’s Facial Soap.” The first two matters are not closely enough related to the present issue, unfair competition in respect to Woodbury’s Facial Soap, to require consideration. Shaver v. Heller & Morz Co., 108 F. 821, 834, 65 L. R. A. 878 (C. C. A. 8). The last seems to us to be answered by Coca-Cola Co. v. Koke Co., 254 U. S. 143, 41 S. Ct. 113, 65 L. Ed. 189. As there said with respect to Coca-Cola, the name has come to mean an article coming from a single source and well known to the community, rather than a com piound of substances according to a particular formula. See, also, Le Blume Import Co. v. Coty, 293 F. 344, 360 (C. C. A. 2). The defendant also argues that it is not responsible for deception which may be practiced in the sale of the soap because it merely manufactured it for William A. Woodbury. Defendant knew, however, that plaintiff manufactured and sold “Woodbury’s Facial Soap.” If, therefore, the soap as wrapped and delivered by defendant to Woodbury or on his order is likely to deceive the ultimate purchasers and come into unfair competition with plaintiff’s product and does do so, we have no doubt that defendant is liable as a contributory infringer. N. K. Fairbank Co. v. Bell. Mfg. Co., 77 F. 869, 878 (C. C. A. 2); Von Mumm v. Frash, supra; Wolf Bros. & Co., v. Hamilton-Brown Shoe Co., 206 F. 611 (C. C. A. 8); Guggenheim v. Cantrell & Cochrane, Limited, 56 App. D. C. 100, 10 F.(2d) 895, 897; Warner & Co. v. Lilly & Co., 265 U. S. 526, 530, 44 S. Ct." }, { "docid": "14404930", "title": "", "text": "v. Scharf Tag Label & Box Co. (C. C. A. 6) 121 F. 313, 318; Auto Acetylene Light Co. v. Prest-O-Lite Co. (C. C. A. 6) 264 F. 810, 815. A third case relied upon by defendant is Andrew Jergens Co. v. William A. Wood-bury. This was filed in the United States District Court for New Jersey at the same time as the bill in the Delaware district already diseussed. It was drawn on the same theory as to plaintiff’s rights. After the Delaware decision, the New Jersey bill was dismissed for lack of prosecution by tbe plaintiff. No evidence was introduced. The issue in the present suit was not, and could not have been, passed upon in that case. Wo agree, therefore, -with the learned District Court that it is still open, upon proof of facts, for a court of equity to ascertain whether or not a Woodbury, by himself or through another, is deceiving the public into thinking that his soap is plaintiff’s Facial Soap or a new brand thereof. The defendant further contends that the plaintiff should have no relief because it has not come into equity with clean hands. This is predicated upon plaintiff’s conduct in (1) having sold cold cream and shaving cream under the name “Woodbury,” which it acquired no right to do under the 1901 contract; and (2) having issued without right what it called a “Woodbury Book”; and (3) having changed the original formula of “John H. Woodbury’s Facial Soap.” The first two matters are not closely enough related to the present issue, unfair competition in respect to Woodbury’s Facial Soap, to require consideration. Shaver v. Heller & Morz Co., 108 F. 821, 834, 65 L. R. A. 878 (C. C. A. 8). The last seems to us to be answered by Coca-Cola Co. v. Koke Co., 254 U. S. 143, 41 S. Ct. 113, 65 L. Ed. 189. As there said with respect to Coca-Cola, the name has come to mean an article coming from a single source and well known to the community, rather than a com piound of substances" }, { "docid": "19048917", "title": "", "text": "another may be held liable as a contributory infringer. John B. Stetson Co. v. Stephen L. Stetson Co., 85 F.2d 586, 588 (2d Cir.) cert. denied 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446 (1936); Reid, Murdoch & Co. v. H. P. Coffee Co., 48 F.2d 817 (8th Cir.) cert. denied 284 U.S. 621, 52 S.Ct. 9, 76 L.Ed. 329 (1931); Andrew Jergens Co. v. Bonded Products Corp., 21 F.2d 419, 424 (2d Cir. 1927), cert. denied 275 U.S. 572, 48 S.Ct. 204, 72 L.Ed. 432 (1928); Mattel Inc. v. Goldberger Doll Mfg. Co., Inc., 200 F.Supp. 517, 519 (E.D.N.Y.1961); Stix Products, Inc. v. United Merchants & Mfrs. Inc., 295 F.Supp. 479, 499-500 (S.D.N.Y.1969); Restatement of Torts, § 739 (1938). Jeannette argues, though, that manufacturers can be held liable as contributory infringers only when they designedly furnish dealers with the means for consummating a fraud and that this is not such a case. The scope of the contributory infringer doctrine, however, is not so narrowly circumscribed. As Judge Wyzanski put it, in Coca-Cola Co. v. Snow Crest Beverages, 64 F.Supp. 980 (D.Mass.1946), aff’d. 162 F.2d 280 (1st Cir.), cert. denied 332 U.S. 809, 68 S.Ct. 110, 92 L.Ed. 386 (1947); a defendant’s accountability under the contributory infringer doctrine « * * * turns on the issue whether a reasonable person in the defendant’s position would realize either that he himself had created a situation which afforded a temptation to or an opportunity for wrong by l’homme moyen sensuel or was dealing with a customer whom he should know would be peculiarly likely to use the defendant’s product wrongfully.” 64 F.Supp. at 989. For example, Andrew Jergens Co. v. Bonded Products Corp., supra, was an action for trademark infringement and unfair competition brought by the manufacturer of “Wood-bury’s Facial Soap” against another soap manufacturer. The defendant in that case manufactured and packaged soap for and according to the instructions of its customer, William A. Wood-bury. The soap supplied by the defendant was marketed under various labels all of which had in common a prominent reference to the name Woodbury. Widespread" } ]

[ { "docid": "15207675", "title": "", "text": "case, Officer Peterson and Officer Neal were involved in an undercover drug buy. Officer Peterson observed a suspected drug dealer aiming a gun at Officer Neal’s head after forcing him to the ground. Officer Peterson fired two shots at the drug dealer only after being fired upon. One of Officer Peterson’s two shots struck and killed Officer Neal. A police officer’s decision to use his weapon when fired upon by a suspected drug dealer requires the type of instant judgment described in Lewis. Under such circumstances the Supreme Court’s analysis in Lewis dictates that Officer Peterson cannot be liable for the harm to Officer Neal under the Fourteenth Amendment in the absence of an intent to cause physical harm to Officer Neal. That intent is clearly absent in this case. Plaintiff Estate argues that the deliberate indifference standard should be used in this case to establish a violation of Officer Neal’s substantive due process rights. The Estate alleges that Officer Peterson breached St. Louis County Police Department policies and practices that led up to the shooting which caused the death of Officer Neal . The Estate asserts that because those breaches occurred before the confrontation with Baker, Officer Peterson had time to deliberate upon his actions and as a result, the deliberate indifference standard should apply. Police department guidelines, however, do not create constitutional rights which are implicated by the breach of such guidelines. See Mettler v. Whitledge, 165 F.3d 1197, 1203 (8th Cir.1999)(plaintifPs assertion that two deputies failed to follow sheriff department’s guidelines by failing to wait for back-up and failing to use squad car to barricade suspect in garage or use other protective actions did not establish a constitutional violation). See also Leiuis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(faet that officer violated department policy on high-speed chase was not used as a factor by the Court in deciding whether decedent’s Fourteenth Amendment rights were violated). A substantive due process violation can only occur if a police officer’s actions involve “an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement" } ]

[ { "docid": "23527618", "title": "", "text": "opportunity to ponder or debate their reaction to the dangerous actions of the armed man. Hence, even if, as the plaintiffs have argued, the actions of the three defendant patrolmen violated departmental policy or were otherwise negligent, no rational fact finder could conclude, even after considering the evidence in the light most favorable to Quintana, that those peace enforcement operatives acted with conscience-shocking malice or sadism towards the unintended shooting victim. Lewis, 118 S.Ct. at 1721 (dictating that, “[r]egardless whether [Deputy] Smith’s behavior offended the reasonableness held up by tort law or the balance struck in law enforcement’s own codes of sound practices, it does not shock the conscience, and petitioners are not called upon to answer for it under § 1983.”). See Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.1998) (concluding that no conscience-shocking behavior was implicated by a deputy sheriffs emergency enlistment of a civilian bystander’s assistance in subduing a dangerous assailant which prompted the perpetrator to slay the civilian), cert. denied, — U.S. -, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999). Indeed, the record reflected, without contradiction, that the three defendant undercover agents did not know that anyone was present in the gray Maxima prior to, or during, the exchange of gunfire which caused Quintana’s injury. Thus, the defendants could not have acted maliciously or sadistically towards that unknown individual. See Farmer v. Brennan, 511 U.S. 825, 835-36, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (explaining that malicious or sadistic behavior entails unjustifiable intentional conduct undertaken with the di rect purpose of causing harm to the victim). Hence, construing all supported allegations and record evidence most favorably for Quintana, no rational fact finder could conclude that Officers Birchwell, Lewis, and/or Spencer violated her substantive due process rights, because the plaintiff cannot prove that they acted with malice or sadism towards her. Thus, the lower court’s summary judgment for those defendants on count three of the amended complaint was correct. See Lewis, 523 U.S. 833, 118 S.Ct. at 1714 n. 5. Furthermore, because the charged official conduct did not inflict any constitutional deprivation upon Quintana, defendant Kirehner," }, { "docid": "23527627", "title": "", "text": "See Lewis, 523 U.S. 833, 118 S.Ct. at 1720-21. As the Seventh Circuit has commented: Other than random attacks, all such cases [involving the use of force by criminal justice personnel] begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994). . The Radecki court explained: Deputy Barela had no time for deliberation. The undisputed facts in this record malte clear that Deputy Barela was confronted with the kind of instantaneous judgment call that is so often required of law enforcement personnel, prison officials, and many other government actors called to emergency situations. Sometimes these decisions are negligent, sometimes they are even reckless, sometimes indifferent. Under these circumstances, however, where Plaintiffs have not even alleged that Deputy Barela acted with an intent to harm the participants or to worsen their legal plight, under the Lewis standard there is no constitutional liability. Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999). CLAY, Circuit Judge, concurring in part and dissenting in part. I concur in the majority’s decision to reverse the district court’s dismissal of Counts One and Two of the complaint; however, because I believe that the district court’s dismissal of Counts Three and Four should also be reversed, I respectfully dissent from the majority’s decision to affirm the dismissal of these counts. I disagree with the majority’s application of what it considers to be the appropriate standard under which the substantive due process claim of Quintana Claybrook (“Ms. Claybrook”), as set forth in Counts Three and Four, should be analyzed. The majority applies the “conscience shocking” standard used for situations involving instances when police officers are" }, { "docid": "15207669", "title": "", "text": "used must be intentionally applied toward that individual. See Id. Therefore, a Fourth Amendment seizure is not found when an innocent bystander is injured by police chasing a fleeing felon or when pursued felons are stopped by police in an unintended car crash. See Lewis, 118 S.Ct. at 1715. The undisputed facts in the present case are that Officer Peterson did not intentionally apply any force to Officer Nfeal. Officer Peterson did not intend to shoot at Officer Neal or to hit him with the two shots fired at Baker. Because Officer Peterson did not intentionally apply any force against Officer Neal, Officer Peterson did not seize Officer Neal in violation of his Fourth Amendment rights. Summary judgment will be granted on this claim. II. Fourteenth Amendment Claim Against Officer Peterson Although not expressly stated in the First Amended Complaint, Plaintiffs’ memorandum' in opposition to summary judgment clarifies that the Estate also asserts a Fourteenth Amendment substantive due process claim. Plaintiff Estate alleges that Officer Neal’s substantive due process rights were violated by Officer Peterson because he ■ acted with deliberate indifference during the course of events leading up to the drug buy which resulted in the shooting of Officer Neal. The overarching fundamental issue in this, case is whether an allegation of deliberate indifference or recklessness can be the basis of a substantive due process violation when a police officer fired his weapon at a suspect and inadvertently struck and killed a fellow officer. A.. The Fourteenth Amendment The Due Process Clause of the Fourteenth Amendment provides “[n]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV. The touchstone, of. due process is the protection of the, individual against the arbitrary action of government, which includes the exercise of power without any reasonable justification in the service of a legitimate governmental objective. Id. at 1716 (quotations and citations omitted). Only the most egregious official conduct can be said to be arbitrary in the constitutional sense. Id. B. Substantive due process claims under the Fourteenth Amendment In County of" }, { "docid": "15207670", "title": "", "text": "because he ■ acted with deliberate indifference during the course of events leading up to the drug buy which resulted in the shooting of Officer Neal. The overarching fundamental issue in this, case is whether an allegation of deliberate indifference or recklessness can be the basis of a substantive due process violation when a police officer fired his weapon at a suspect and inadvertently struck and killed a fellow officer. A.. The Fourteenth Amendment The Due Process Clause of the Fourteenth Amendment provides “[n]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV. The touchstone, of. due process is the protection of the, individual against the arbitrary action of government, which includes the exercise of power without any reasonable justification in the service of a legitimate governmental objective. Id. at 1716 (quotations and citations omitted). Only the most egregious official conduct can be said to be arbitrary in the constitutional sense. Id. B. Substantive due process claims under the Fourteenth Amendment In County of Sacramento v. Lewis, the Supreme Court reviewed what official conduct may form the basis of a substantive due process violation. The case involved a § 1983 substantive due process, claim of a motorcycle passenger who was killed when struck by a police, car during' a high-speed chase. The Court found that a substantive due process violation could only occur if a police officer’s actions involved “an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement as to be barred, by the Fourteenth Amendment.” Id. at 1713. The Court reiterated that in order to find a violation of- a citizen's ■ substantive due process rights, governmental action must shock the conscience. Id. at 1718. The shock the conscience test is most likely met when a government actor has an intent to harm which is unjustified by any governmental interest. Id. While governmental conduct which is deliberately indifferent will not generally “shock the conscience”, it may in some instances. ’ Id. Therefore, whether the standard of condüét ■ employed by a governmental" }, { "docid": "1370168", "title": "", "text": "may use deadly force to defend themselves. For example, in a related context, the Supreme Court has held: Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985). Although Gamer specifically addressed the degree of force officers could use to prevent escape, the case also more generally addresses the constitutional limits of the use of deadly force. The linchpin of the Gamer holding is that officers who have probable cause to believe they are dealing with an armed and dangerous suspect may use deadly force without violating the suspect’s constitutional rights. In addition, Rhodes v. McDannel, 945 F.2d 117 (6th Cir.1991) and Estate of Jackson v. City of Rochester, 705 F.Supp. 779 (W.D.N.Y. 1989) lend further support to the defendants’ position. In both cases the district courts found that officers who shot suspects armed with knives were entitled to immunity. In Rhodes, the officers responded to a report that a woman was being chased around her home by a man with a machete. The woman let the officers into the house and escorted them to the living room where they encountered the suspect wielding a machete. The suspect advanced toward them with the weapon, and the officers ordered him to drop the knife. He failed to heed their warnings, and when he advanced within a distance of four to six feet, one of the officers fired his weapon and killed the suspect. The District Court found that the officer’s conduct was reasonable, and granted summary judgment. The Sixth Circuit affirmed. Id., 945 F.2d 117. Similarly, in Estate of Jackson v. City of Rochester, supra, the District Court granted a motion for summary judgment based on a finding that the officer’s actions were reasonable and he was entitled to immunity. In that case, the officer confronted the suspect in a video arcade. The suspect attempted to leave the arcade," }, { "docid": "13992143", "title": "", "text": "to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.” Id. at 854, 118 S.Ct. 1708. Applying Lewis, we have previously directed dismissal of claims brought on behalf of an innocent bystander killed during a police struggle with a suspect. Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.1998). The Lewis principles therefore apply whether the claimant is a police sus pect or an innocent victim. The touchstone is whether the officers “acted with an intent to harm the participants or to worsen their legal plight.” Id. Reviewing the record before us, we find no genuine issue of material fact precluding summary judgment. Plaintiffs claim that the officers were grossly negligent, reckless and even deliberately indifferent to their plight. Nowhere do plaintiffs present specific facts suggesting that the officers harbored an intent to harm them. Thus, there is no constitutional liability under Lewis. We therefore affirm the district court’s dismissal of plaintiffs’ claims under 42 U.S.C. § 1983 and related provisions. AFFIRMED. . In their initial complaint, plaintiffs also alleged that defendants conspired to abridge their constitutional rights in violation of 42 U.S.C. §§ 1985 and 1986. The district court found that plaintiffs had abandoned these claims in their second amended complaint. Even assuming these claims were not abandoned below, we affirm the district court’s dismissal. Section 1985(3), the subsection on which we presume plaintiffs rely, and Section 1986 create no independent substantive causes of action. Wheeler v. Swimmer, 835 F.2d 259, 261 (10th Cir.1987). The only substantive claims plaintiffs assert are the constitutional grounds that we have rejected." }, { "docid": "23038412", "title": "", "text": "court addressed the question of whether the substantive due process standard in a claim brought by the mother and widow of an individual killed by law enforcement officers differed from the standard governing a ease brought by the estate of an individual killed in a high-speed police chase. Relying on its earlier decision in Lewis, this court held that both of these situations are governed by the same standard of culpability. Id. at 1133-34. Though that standard ultimately was rejected by the Supreme Court in Lems, Byrd continues to stand for the proposition that the same level of culpability is implicated by these two types of substantive due process claims. Furthermore, each of the circuits that has interpreted and applied this aspect of the Lewis decision has recognized that the critical question in determining the appropriate standard of culpability is whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct. See Armstrong v. Squadrito, 152 F.3d 564, 576-82 (7th Cir.1998) (applying Lewis’s standard of culpability reasoning to a substantive due process claim based on prolonged unlawful detention); Medeiros v. O’Connell, 150 F.3d 164, 169-70 (2d Cir.1998) (applying Lewis in accidental shooting case); Radecki v. Barela, 146 F.3d 1227, 1231-32 (10th Cir.1998) (holding that Lewis’s “purpose to commit harm” standard applies to all eases involving “emergency situations”). Accordingly, we hold that Las Vegas police officers Burns and Pope did not violate the plaintiffs’ substantive due process rights to family association when they accidentally shot and killed Douglas, because the officers were responding to the extreme emergency of public gunfire and did not intend to commit any harm unrelated to the legitimate use of force necessary to protect the public and themselves. Viewed through this prism, it is apparent Appellants cannot prevail under their theory of this ease. Appellants do not contend Burns intended to harm Douglas, physically or otherwise. Nor do Appellants dispute that Burns was entitled to use deadly force to halt the gunfight occurring in the Chances Arr parking lot. Instead, Appellants simply contend that the officers shot a bystander, and that" }, { "docid": "1400526", "title": "", "text": "have determined that a genuine issue of material fact exists as to the timing of Officer Edinburg’s firing of the first shot, Mr. Scott’s attempt to run over Officer Edinburg is relevant in considering the reasonableness of Officer Edinburg’s perception that the bystanders were in danger. In Ellis, we explained “[i]f Ellis had threatened the officer with a weapon and then run off with the weapon, a reasonable officer ... could believe that Ellis created a danger to the community.” Ellis, 999 F.2d at 247. Officer Edinburg knew that Mr. Scott already had committed a forcible felony and had attempted to run him down in order to escape or at least had acted recklessly with respect to that possibility. Moreover, Officer Edinburg knew that Mr. Scott was escaping at a high rate of speed through a parking lot with twelve to fourteen bystanders and demonstrating little concern for anyone’s safety. These facts support Officer Edinburg’s argument that the use of deadly force was permissible to protect third parties in danger. See Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir.1988) (en banc) (“ ‘[W]hen an officer believes that a suspect’s actions [place] him, his partner, or those in the immediate vicinity in imminent danger of death or serious bodily injury, the officer can reasonably exercise the use of deadly force. ’ ” (emphasis in original)); see also Muhammed, 316 F.3d at 683 (quoting Sherrod); Ford v. Childers, 855 F.2d 1271, 1275 (7th Cir.1988) (en banc) (finding no Fourth Amendment violation when officer fired at a suspect “because he reasonably believed that the suspect had committed a felony involving the threat of deadly force, was armed with a deadly weapon, and was likely to pose a danger of serious harm to others if not immediately apprehended”); Freland, 954 F.2d at 347 (affirming summary judgment even though officer was not in immediate personal danger when he fired his weapon because he could reasonably believe that the suspect posed a serious and immediate danger to the public and fellow officers). The plaintiffs contend that the district court’s grant of summary judgment was inappropriate" }, { "docid": "11390079", "title": "", "text": "intent-to-harm standard and found no constitutional liability: “Deputy Barela was confronted with a suddenly explosive law enforcement situation when Martinez tried to seize Barela’s gun.... Deputy Barela had no time for deliberation ... [and] was confronted with the kind of instantaneous judgment call that is so often required ... [in] emergency situations.” Id. In an unpublished decision issued in 1999, we simply applied the Lems intent-to-harm standard, without discussion, to a high-speed police chase in which “[t]he vehicle pursued by the police crashed into the vehicle driven by [the plaintiff].” Carleton v. City of Tulsa, 166 F.3d 1220, 1999 WL 11282, at *1 (10th Cir. Jan.13, 1999) (unpublished). In Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir.2000), we applied the Lewis intent-to-harm test to a substantive due process claim brought against police officers by hostages injured when police pursued escaped state prison inmates, and we explicitly held that the “Lewis principles ... apply whether the claimant is a police suspect or an innocent victim. The touchstone is whether the officers ‘acted with an intent to harm the participants or to worsen their legal plight.’ ” Id. at 1157-58 (quoting Radecki, 146 F.3d at 1232). In Sherwood v. Oklahoma County, 42 Fed.Appx. 353 (10th Cir.2002) (unpublished), involving a substantive due process challenge to the decision of the Oklahoma County Sheriff to require the plaintiff to supervise inmates in the painting of county-owned vehicles, even after the defendants learned of the health hazards from the process and type of paint used, we discussed the differing time frames relevant to different situations: “Where there is time for thoughtful deliberation, defendants are held to a higher standard. Conversely, where circumstances necessitate split second judgments, the Court has held a much higher standard of fault than deliberate indifference has to be shown for liability.” Id. at 359. In 2005, in Perez, we examined the Lewis standard in a context more like the instant case: a firefighter, speeding to respond to an emergency call, hit and killed a motorist while going through an intersection on a red light, in the wrong lane, with siren" }, { "docid": "13992142", "title": "", "text": "Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, - U.S. -, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court clarified the substantive due process standard of culpability for an officer involved in a police pursuit. The Court held that “in a high-speed automobile chase aimed at apprehending a suspected offender ... only a purpose to cause harm unrelated to the legitimate object of arrest” is sufficiently “shocking to the conscience” to establish a due process violation. Id. at 836, 118 S.Ct. 1708. In rejecting a “deliberate indifference” standard of fault, the Court stressed that such a standard is workable “only when actual deliberation is practical.” Id. at 851, 118 S.Ct. 1708. Police officers giving chase make decisions “in haste, under pressure, and frequently without the luxury of a second chance.” Id. at 853, 118 S.Ct. 1708, 1720 (internal quotation marks and citation omitted). Given these pressures, the Court concluded that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.” Id. at 854, 118 S.Ct. 1708. Applying Lewis, we have previously directed dismissal of claims brought on behalf of an innocent bystander killed during a police struggle with a suspect. Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir.1998). The Lewis principles therefore apply whether the claimant is a police sus pect or an innocent victim. The touchstone is whether the officers “acted with an intent to harm the participants or to worsen their legal plight.” Id. Reviewing the record before us, we find no genuine issue of material fact precluding summary judgment. Plaintiffs claim that the officers were grossly negligent, reckless and even deliberately indifferent to their plight. Nowhere do plaintiffs present specific facts suggesting that the officers harbored an intent to harm them. Thus, there is no constitutional liability under Lewis. We therefore affirm the district court’s dismissal of plaintiffs’ claims under 42 U.S.C. § 1983 and related provisions. AFFIRMED. . In their" }, { "docid": "11390078", "title": "", "text": "same year as Lewis (1998), where an innocent third party was murdered by a suspect whom the police were attempting to arrest. We observed that the Supreme Court had: specifically recognize[d] that in the middle range of the culpability spectrum, where the conduct is more than negligent but less than intentional, there may be some conduct that is egregious enough to state a substantive due process claim. Within this middle range, Lewis directs us to analyze the level of culpability by examining the circumstances that surround the conduct at issue and the governmental interest at stake. Radecki, 146 F.3d at 1231. Noting that the Court directed employment of the “ ‘deliberate indifference’ standard only when actual deliberation is practical,” we “distinguished] between emergency action and actions taken after opportunity for reflection.” Id. at 1232. “Where the state actor has the luxury to truly deliberate about the decision he or she is making, something less than unjustifiable intent to harm, such as calculated indifference, may suffice to shock the conscience.” Id. We then applied the Lewis intent-to-harm standard and found no constitutional liability: “Deputy Barela was confronted with a suddenly explosive law enforcement situation when Martinez tried to seize Barela’s gun.... Deputy Barela had no time for deliberation ... [and] was confronted with the kind of instantaneous judgment call that is so often required ... [in] emergency situations.” Id. In an unpublished decision issued in 1999, we simply applied the Lems intent-to-harm standard, without discussion, to a high-speed police chase in which “[t]he vehicle pursued by the police crashed into the vehicle driven by [the plaintiff].” Carleton v. City of Tulsa, 166 F.3d 1220, 1999 WL 11282, at *1 (10th Cir. Jan.13, 1999) (unpublished). In Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir.2000), we applied the Lewis intent-to-harm test to a substantive due process claim brought against police officers by hostages injured when police pursued escaped state prison inmates, and we explicitly held that the “Lewis principles ... apply whether the claimant is a police suspect or an innocent victim. The touchstone is whether the officers ‘acted with an" }, { "docid": "11390077", "title": "", "text": "While it may have been clearly established that an officer can be liable if the plaintiffs show that he intended to harm the plaintiffs in the context of a high-speed pursuit, it was not clearly established what specific standard applied to the particular facts of this case — i.e., where the officer was engaged in a high-speed non-emergency response to a call to locate and arrest a suspected gas thief. We illustrate this uncertainty in the law by surveying Supreme Court, Tenth Circuit and other circuits’ case law as of June 2006. As indicated, Lewis established that the intent-to-harm standard applied to the situation where a police officer, responding to “outrageous behavior” by a suspect, engaged in an immediate “instinctive” high-speed pursuit and killed the suspect. Lewis, 523 U.S. at 855, 118 S.Ct. 1708. The Court directed courts to consider the totality of the particular circumstances to assess whether the lesser “deliberate indifference” standard applies when “actual deliberation is practical.” Id. at 851, 118 S.Ct. 1708. We examined and applied Lems in Radecki, decided the same year as Lewis (1998), where an innocent third party was murdered by a suspect whom the police were attempting to arrest. We observed that the Supreme Court had: specifically recognize[d] that in the middle range of the culpability spectrum, where the conduct is more than negligent but less than intentional, there may be some conduct that is egregious enough to state a substantive due process claim. Within this middle range, Lewis directs us to analyze the level of culpability by examining the circumstances that surround the conduct at issue and the governmental interest at stake. Radecki, 146 F.3d at 1231. Noting that the Court directed employment of the “ ‘deliberate indifference’ standard only when actual deliberation is practical,” we “distinguished] between emergency action and actions taken after opportunity for reflection.” Id. at 1232. “Where the state actor has the luxury to truly deliberate about the decision he or she is making, something less than unjustifiable intent to harm, such as calculated indifference, may suffice to shock the conscience.” Id. We then applied the Lewis" }, { "docid": "23603498", "title": "", "text": "drawn gun at close range when they pointed the gun at head of unarmed misdemeanor suspect is actionable) (en banc). In addition, there are questions of fact regarding whether Officer Keesor’s and Alvis’s use of deadly force was reasonable. Both officers fired their entire magazines at Sullivan. Officer Keesor fired 12 shots at Sullivan. Officer Alvis fired 13 shots at Sullivan. All shots were fired at close range. The officers stated that Sullivan refused to show his hands and made disturbing statements, such as “Kill me or I’ll kill you” and “Are you ready to shoot me?” Officer Alvis stated that she thought she saw something in Sullivan’s hands and when he moved his right arm that she thought he was going to shoot her. Officer Keesor stated that he saw something that looked like a gun in Sullivan’s hand, heard a pop, and began shooting at Sullivan. According to the officers, Sullivan was resisting arrest and posed a high risk to their safety. Still, Sullivan had not been accused of any crime. He was not a threat to the public and could not escape. He had not initially caused this situation. He had not brandished a weapon, spoken of a weapon, or threatened to use a weapon. Sullivan, in fact, did not have a weapon. Viewing the evidence in the light most favorable to the plaintiffs, defendants have failed to show that there are no questions of fact regarding whether the use of deadly force was reasonable. See id.; Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir.2003) (affirming denial of qualified immunity on excessive force claim where suspect posed no safety risk). III. Provoking a Confrontation Finally, the district court properly denied defendants’ summary judgment motion on whether the officers were entitled to qualified immunity for allegedly violating Sullivan’s Fourth Amendment rights by intentionally or recklessly provoking a confrontation. Where a police officer “intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.” Billington v. Smith, 292 F.3d 1177," }, { "docid": "10095697", "title": "", "text": "Circuit Court of Appeals has demonstrated a marked reluctance to find constitutional violations arising out of actions taken by police officers in circumstances similar to those in the instant case. In Reese v. Anderson, 926 F.2d 494 (5th Cir.1991), for example, the Fifth Circuit held that a police officer was entitled to summary judgment in a § 1983 action where the officer shot and killed an unarmed robbery suspect who had reached down below the seat of his car after being ordered to raise his hands. Id. at 500. The Fifth Circuit concluded that “under these circumstances, a reasonable officer could well fear for his safety and that of others nearby” and that the officer was thus justified in using deadly force to defend himself and others around him. Id. at 501. The Fifth Circuit thus concluded that the officer was entitled to summary judgment as a matter of law. More recently, in Stroik v. Ponseti, 35 F.3d 155, 159 (5th Cir.1994) the Fifth Circuit reversed a magistrate judge’s refusal to grant summary judgment to an officer who shot a suspect in self-defense. In Stroik, the officer stopped a van whose occupants, the officer had reasonable cause to believe, had just committed an armed robbery. Id. After the officer came around the rear of the van, he testified without contradiction that a suspect was pointing a gun at him and that he accordingly shot the suspect. Id. Under these facts, the Fifth Circuit concluded that the officer had probable cause to believe that the suspect posed a threat of serious physical harm, -and that his motion for summary judgment should therefore have been granted. Id. In so concluding, the Fifth Circuit approvingly cited the Sixth Circuit decision of Smith v. Freland, 954 F.2d 343, 347 (6th Cir.1992) for the proposition that: we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may" }, { "docid": "11390067", "title": "", "text": "which shocks the conscience.” Lewis, 523 U.S. at 846, 118 S.Ct. 1708; see also Graves, 450 F.3d at 1221. While noting that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,” the Court observed that it is a “closer call[ ]” whether “the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence.” Lewis, 523 U.S, at 849, 118 S.Ct. 1708; see also Radecki v. Barela, 146 F.3d 1227, 1231 (10th Cir.1998). As applied to high-speed police pursuits, the Court held that “highspeed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.” Lewis, 523 U.S. at 854, 118 S.Ct. 1708. The Court acknowledged, however, that circumstances are important in evaluating the existence of a substantive due process claim: “Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Id. at 850, 118 S.Ct. 1708 (emphasis added); see also Graves, 450 F.3d at 1221. Thus, “when unforeseen circumstances demand an officer’s instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates the large concerns of the governors and the governed.” Lewis, 523 U.S. at 853, 118 S.Ct. 1708; see also Perez, 432 F.3d at 1166. “However, “when actual deliberation is practical,’ we will employ a ‘deliberate indifferenee’ standard.” Graves, 450 F.3d at 1221 (quoting Lewis, 523 U.S. at 851, 118 S.Ct. 1708); see also Radecki, 146 F.3d at 1231 (discussing Lewis and stating “[w]e are directed to employ the ‘deliberate indifference’ standard only when actual deliberation is practical”). In analyzing the meaning of the Court’s use of the phrase “actual deliberation,” we have “cautioned that [it] meant" }, { "docid": "1370171", "title": "", "text": "denial of summary judgment where an officer killed a passenger in a car which had been stopped after a high-speed chase. The officer had drawn his gun and ordered the car’s occupants to raise their hands. The passenger turned away and reached toward the floorboard. The officer shot the passenger once in the head, killing him. Later , investigation revealed the pas senger was unarmed. However, the Court found that the officer’s belief that the suspect posed a threat of injury was not unreasonable. Id. at 500. These cases all support the general principle that an officer may reasonably use deadly force when he or she confronts an armed suspect in close proximity whose actions indicate an intent to attack. In these circumstances, the Courts cannot ask an officer to hold fire in order to ascertain whether the suspect will, in fact, injure or murder the officer. The high numbers of officer mortalities in recent years illustrate the unreasonableness of such a notion. Where the suspect was confronted by an armed police officer, and failed to heed the officer’s request to drop a weapon, Jackson reasonably believed that “the suspect pose[d] a threat of serious physical harm either to the officer or to others.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. Denise and Jeanette Reynolds cite Hopkins v. Andaya, 958 F.2d 881 (9th Cir.1992) in support of their opposition to the summary judgment motion. In Hopkins, the Ninth Circuit reversed the district court’s grant of summary judgment. However, Hopkins can be distinguished from the case at bar. In Hopkins, the officer alleged that the suspect grabbed his baton and struck him 10 or 20 times, including on the head. The officer then pulled his gun and shot the suspect six times. The officer then retreated across the street, called for backup, and reloaded his gun. The suspect pursued the officer across the street. The officer got behind a car and .shot the suspect four more times, killing him. In Hopkins the suspect had already been shot six times, was unarmed, and was some distance from the officer when" }, { "docid": "1370172", "title": "", "text": "to heed the officer’s request to drop a weapon, Jackson reasonably believed that “the suspect pose[d] a threat of serious physical harm either to the officer or to others.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. Denise and Jeanette Reynolds cite Hopkins v. Andaya, 958 F.2d 881 (9th Cir.1992) in support of their opposition to the summary judgment motion. In Hopkins, the Ninth Circuit reversed the district court’s grant of summary judgment. However, Hopkins can be distinguished from the case at bar. In Hopkins, the officer alleged that the suspect grabbed his baton and struck him 10 or 20 times, including on the head. The officer then pulled his gun and shot the suspect six times. The officer then retreated across the street, called for backup, and reloaded his gun. The suspect pursued the officer across the street. The officer got behind a car and .shot the suspect four more times, killing him. In Hopkins the suspect had already been shot six times, was unarmed, and was some distance from the officer when the officer fired the fatal shots. In Hopkins, it was not reasonable for the officer to believe that a seriously injured, unarmed suspect “posed a threat of serious physical harm.” In the case at bar, there is uncontroverted evidence that Reynolds was armed and in a position to inflict grave bodily harm on Jackson at the time Jackson fired his gun. C. There are No Material Facts in Controversy Plaintiffs contend that summary judgment is inappropriate because there are controverted facts. This contention is not, however, supported by the record. 1. Expert Opinion as to Whether Actions Were Reasonable Does Not Present A Triable Issue of Fact Plaintiffs have retained experts who contend that Jackson could have taken other actions in his confrontation with Reynolds. They allege that by talking softly to the suspect or waiting for a backup, Jackson might have avoided putting himself in a situation where Reynolds posed a serious threat of physical injury. (Reiter Depo. at 116 and 165). However, this position ignores the Supreme Court’s holding in Hunter v. Bryant," }, { "docid": "23167839", "title": "", "text": "OPINION SMITH, Circuit Judge. This civil-rights case was filed after law enforcement officers shot and killed a suspected car thief during a standoff. Immediately prior to the shooting, the suspect had been standing with his right hand concealed in his waistband and appeared to be clutching an object. After being ordered both to show his hands and to freeze, the suspect suddenly pulled his right hand out of his waistband — not as if he were surrendering — but as though he were drawing a gun. The sudden movement prompted the officers to open fire, leading to the suspect’s death. The officers fired their guns for 10 solid seconds, shooting a total of 39 rounds. Eighteen bullets hit the suspect, 11 of them from behind. It turned out that the suspect was not clutching a weapon; he was holding a crack pipe. The administrator of the suspect’s estate filed this suit under 42 U.S.C. § 1983, asserting that the officers’ use of force was unreasonable and violated the Fourth Amendment. In due course, the District Court granted a defense motion for summary judgment, holding that the officers acted reasonably as a matter of law. To the extent that the District Court held that the suspect’s abrupt, threatening movement justified the officers’ initial use of deadly force, we agree. However, we conclude that a jury should decide whether the force became unreasonable some time thereafter — ie., whether the officers should have ceased firing their weapons before they did. Accordingly, we will affirm in part and reverse in part. I The events surrounding the deadly shooting took place shortly after 10:00 p.m. on July 21, 2003. New Jersey State Troopers Christopher Modarelli, Mark Manzo, Keith Moyer, Joseph Carson, and Thomas Hollywood were at the Bellmawr State Police Station when the radio dispatcher reported that local police were in pursuit of a stolen vehicle on Interstate 295 near Route 30. The location is within the Bellmawr station’s jurisdiction, so the troopers drove out to the scene. When they arrived, they were advised that the suspect, a white male wearing a white t-shirt," }, { "docid": "8089102", "title": "", "text": "he was holding. At the time, Fowler was holding a flashlight in his left hand and his gun in his right hand. As Fowler attempted to shift his equipment and pull the baton from his belt with his right hand, his gun discharged. The bullet from Fowler’s weapon struck the brick column and bullet fragments ricocheted into Dre-non, striking him in the face. At the time, Drenon was facing Seiner, not Fowler. Assuming Seiner had shot him, Drenon immediately fired three shots into Seiner, killing him. Drenon then called, “I’m hit ... he shot me, Hugh.” Fowler replied, “No, Chip, I shot you.” Seiner’s parents, Norma and Charles Seiner, sued Drenon alleging excessive force in violation of 42 U.S.C. § 1983 and Missouri state law claims of battery, assault, and excessive force. The district court granted summary judgment to Drenon. The court held Drenon was entitled to qualified immunity on the § 1983 claim because no rational jury could find Drenon’s actions were objectively unreasonable under the circumstances. The court held Drenon was entitled to summary judgment on the state law claims because he was acting in a discretionary capacity and thus was immune under the official immunity doctrine. Seiner’s mother appeals, and we affirm. We review the grant of summary judgment based on qualified immunity de novo. Wilson v. City of Des Moines, 293 F.3d 447, 449 (8th Cir.2002). When considering the qualified immunity issue, we must first decide whether, viewed in the light most favorable to Seiner’s mother, the facts alleged show Drenon’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Claims that law enforcement officers have used excessive force during an arrest or other seizure are analyzed under the Fourth Amendment and its “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To decide whether a particular use of force is objectively reasonable, courts examine the facts and circumstances of each case, including the crime’s severity, whether the suspect poses an immediate threat to the safety of officers" }, { "docid": "11390066", "title": "", "text": "plaintiff ordinarily must identify ‘cases of controlling authority ... at the time of the incident ... [or] a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.’ ”) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). As we observed in Graves, “[t]he Supreme Court’s decision in Lewis is the starting point when considering a substantive due process claim resulting from a highspeed chase.” Graves, 450 F.3d at 1221. In Lewis, a police officer pursued teenagers on a motorcycle at speeds reaching 100 miles per hour, when they refused to obey his command to stop. When the motorcycle made a sharp turn, one of the teenagers fell off and was killed when the officer was unable to stop his car in time and struck the teen. In acknowledging the availability of a substantive due process claim where there is an executive abuse of power, the Court held that a “cognizable level of executive abuse of power [is] that which shocks the conscience.” Lewis, 523 U.S. at 846, 118 S.Ct. 1708; see also Graves, 450 F.3d at 1221. While noting that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process,” the Court observed that it is a “closer call[ ]” whether “the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence.” Lewis, 523 U.S, at 849, 118 S.Ct. 1708; see also Radecki v. Barela, 146 F.3d 1227, 1231 (10th Cir.1998). As applied to high-speed police pursuits, the Court held that “highspeed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.” Lewis, 523 U.S. at 854, 118 S.Ct. 1708. The Court acknowledged, however, that circumstances are important in evaluating the existence of a substantive due process claim: “Deliberate indifference that shocks in" } ]

[ { "docid": "22901767", "title": "", "text": "also can violate the Fifth Amendment privilege. When the alleged infringements consist of such references, “a reviewing court must look at all the surrounding circumstances in determining whether or not there has been a constitutional violation.” Butler v. Rose, 686 F.2d 1163, 1170 (6th Cir.1982) (en banc). The court must undertake a “probing analysis of the context of the comment.” United States v. Robinson, 651 F.2d 1188, 1197 (6th Cir.1981). This “probing analysis” involves the consideration of four factors: (1) Were the comments “manifestly intended” to reflect the accused’s silence or of such a character that the jury would “naturally and necessarily” take them as such; (2) Were the remarks isolated or extensive; (3) Was the evidence of guilt otherwise overwhelming; [and] (4) What curative instructions were given, and when. United States v. Moore, 917 F.2d 215, 225 (6th Cir.1990) (quoting Spalla v. Foltz, 788 F.2d 400, 404-05 (6th Cir.1986)). We will begin with the prosecutor’s comments regarding Armstead’s testimony. We are. convinced that the statements concerning Armstead were not manifestly intended to reflect on Petitioner’s failure to testify at trial, nor would the jury have understood the statements as such. This Circuit has explained that we will not find “manifest intent” where some other explanations for the prosecutor’s comments are equally possible. United States v. Ursery, 109 F.3d 1129, 1135 (6th Cir.1997). In addition, we have made clear that the question is not whether the jury possibly or even probably would view the statements as comments on the defendant’s failure to testify, “but whether the jury necessarily would have done so.” Id. These standards have not been met here. As the district court noted, the comments were made during a closing argument that focused on the reasons why Armstead, a jailhouse informant, should have been viewed by the jury as a credible witness. Armstead’s credibility was clearly at issue, and the prosecutor had a legitimate reason for attempting to focus on the strengths of his testimony during closing argument. Moreover, Armstead’s testimony regarding the “bragging” that was done by Petitioner, Brewer, and Woodall about the murder, as well as" } ]

[ { "docid": "23667158", "title": "", "text": "prosecutor’s remarks unfairly shifted the burden of proof but rather that they constituted impermissible commentary on the accused’s silence. We conclude, however, that prosecutor’s remarks did not constitute impermissible commentary on Brown’s decision not to testify at trial. In this case, the government did not make a direct comment concerning Brown’s silence; the only aspect of the summation of which Brown now complains is the formulation, “there has been no challenge to his testimony, it’s uncontested.” We have held that a prosecutor’s remark that any aspect of the government’s evidence was “undisputed” or “uncontra-dicted” at trial constitutes an improper comment on a defendant’s silence only where “the language used was manifestly intended or was of such a character that the jury would naturally take it to be a comment on the failure of the accused to testify.” Bontempo v. Fenton, 692 F.2d 954, 958 (3d Cir.1982). Brown has failed to satisfy either of these requirements. As the government explained at sidebar, the comments in question went only to the relatively innocuous fact that Officer Hughes walked down Clinton Street before seeing Brown. The trial court had every right, in the exercise of its sound discretion, to credit that explanation of the prosecutor’s interrupted comments to the extent it saw fit. See United States v. Mabry, 3 F.3d 244, 248 (8th Cir.1993), cert. denied, Edwards v. U.S., 511 U.S. 1020, 114 S.Ct. 1403, 128 L.Ed.2d 75, abrogation on other grounds recognized in United States v. Sheppard, 219 F.3d 766, 767 (8th Cir.2000), cert. denied, - U.S.-, 121 S.Ct. 1208, 149 L.Ed.2d 121 (2001). Given the fact that the District Court accepted this reasonable explanation, we are unable to find that the prosecutor’s remarks were “manifestly intended” or would “naturally [be taken],” Bontempo, 692 F.2d at 958, as a comment on Brown’s silence. Brown also asserts that the government’s comments “necessarily” reminded the jury of the defendant’s failure to testify at trial. This argument, too, is unpersuasive. The claim that a prosecutor’s remark necessarily would be perceived by a jury as an adverse comment on the accused’s silence must be assessed in" }, { "docid": "3166701", "title": "", "text": "prosecutor’s intention to call attention to the defendant’s failure to testify, or (2) are such that the jury would naturally and necessarily take them as a comment on the defendant’s failure to testify.” United States v. Durant, 730 F.2d 1180, 1184 (8th Cir.), cert. denied, — U.S.-, 105 S.Ct. 149, 83 L.Ed.2d 87 (1984). “Both tests require attention to the context of the prosecutor’s remarks — the argument itself, and the larger context of the evidence introduced at trial.” Id. Under either prong of the Durant holding, the Government’s rebuttal argument in the present case does not cross the border of impermissible comment. In Durant, the comments were arguably more related to the defendant’s failure to testify (i.e. repeated characterizations of an accomplice’s testimony as “not substantially disputed,” “unchallenged,” and “not contradicted”) than the comments here about the lack of explanation for the location of the boots. This court found no reversible error in Durant because the Government’s re- marks were essentially responsive to argument about the accomplice’s testimony. Furthermore, it was concluded that the jury would not have “naturally and necessarily” viewed the prosecutor’s statements as a comment on defendant’s failure to testify in light of the obvious defense strategy of impeachment. In the present case, the trial court determined that the prosecutor’s remarks about the boots were intended to deflate defense counsel’s theories about the child’s testimony rather than to draw attention to defendants’ failure to testify. We agree with that conclusion. The presence of the boots in the crawl space was physical evidence that strongly confirmed certain portions of Tray’s testimony. Defense counsel had offered possible motives or inducements for Tray to testify falsely; the prosecutor’s remarks are perfectly consistent with an attempt to deal with this conjecture and rehabilitate the boy’s character for truthfulness. “We cannot find that the prosecutor manifestly intended to comment on the defendant’s failure to testify, if some other explanation for his remark is equally plausible.” United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir.1977). For similar reasons, the jury would not have naturally and necessarily taken the Government attorney’s statements" }, { "docid": "23667162", "title": "", "text": "constitute improper commentary on Brown’s failure to testify. Rather, they simply amount to a proper rebuttal argument. During the defense summation, Brown’s counsel cast doubt upon Officer Hughes’s testimony that he was unaware until trial that the gun recovered at the arrest scene had a broken firing pin, and suggested the possibility that “Officer Hughes planted” the defective and therefore harmless “gun on him, Mr. Brown.” In its rebuttal statement, when the prosecutor asked, “Have we heard any suggestion of some motive Officer Hughes would have for making up this story?”, Brown’s counsel objected and at sidebar accused the government of shifting the burden of proof to the defendant. The District Court overruled the defense objection, stating, I think you opened the door, you called into question Officer Hughes’ credibility, suggested he might have planted the weapon, it was a broken weapon. I think this is fair comment and I don’t think it shifts the burden. The objection is overruled. We find no error in the District Court’s ruling. Indeed, we have at least twice found commentary of this type to constitute proper rebuttal material. See United States v. Dansker, 537 F.2d 40, 63 (3d Cir.1976) (prosecutor’s comments challenging the failure of defense counsel to offer an innocent explanation for a suspicious conversation involving appellant did not constitute improper commentary on appellant’s failure to testify); United States v. Adamo, 534 F.2d 31, 39 (3d Cir.1976) (prosecutor’s remark during summation that “nobody denied” a portion of witness’s testimony was not an impermissible commentary on appellant’s silence, but rather an attempt to defend witness’s credibility after attacks of defense counsel). Additionally, we have specifically held that when, as here, the defense uses its summation to accuse a government witness of framing the defendant, the government may in its rebuttal point to the absence of evidence to support such an accusation. See United States v. Pungitore, 910 F.2d 1084, 1124 (3d Cir.1990). It is our view that the government properly did so in the instant case. Brown’s only other argument relating to the prosecution’s summation concerns the following remarks: The judge instructed you" }, { "docid": "14409119", "title": "", "text": "prosecutor from commenting on a defendant’s failure to testify, Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), if “the prosecutor’s manifest intent in making the remark must have been to comment on the defendant’s silence, or the character of the remark must have been such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence.” Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.1999) (citing United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir.1996)). “The prosecutor’s intent is not manifest if there is some other, equally plausible explanation for the remark.” Grosz, 76 F.3d at 1326. As for whether a jury would naturally and necessarily construe a remark as a comment on the defendant’s failure to testify, “the question is not whether the jury possibly or even probably would view the challenged remark in this manner, but whether the jury necessarily would have done so.” Id. (quoting United States v. Collins, 972 F.2d 1385, 1406 (5th Cir.1992)) (quoting United States v. Carrodeguas, 747 F.2d 1390, 1395 (11th Cir.1984)). Additionally, challenged comments are evaluated in the context of the trial within which they are made. United States v. Robinson, 485 U.S. 25, 33, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). As a threshold matter, we grant Cotton a COA on this issue. Reasonable jurists could debate whether a constitutional violation occurred due to the prosecutor’s reference to the defendant as an “expert witness” while arguing that the defense could not impeach the prosecution’s principal witness. The district court held that the state courts did not unreasonably apply clearly established federal law in denying relief on Cotton’s claim. The district court concluded that the prosecutor’s statement referred to the inability of the defense counsel to impeach Watson’s credibility even though Cotton was available to assist them. The district court found that this statement was intended to be a “comment on the failure of the defense, as opposed to the defendant, to counter or explain the testimony presented or evidence introduced” and as such did not violate the defendant’s Fifth" }, { "docid": "23667163", "title": "", "text": "found commentary of this type to constitute proper rebuttal material. See United States v. Dansker, 537 F.2d 40, 63 (3d Cir.1976) (prosecutor’s comments challenging the failure of defense counsel to offer an innocent explanation for a suspicious conversation involving appellant did not constitute improper commentary on appellant’s failure to testify); United States v. Adamo, 534 F.2d 31, 39 (3d Cir.1976) (prosecutor’s remark during summation that “nobody denied” a portion of witness’s testimony was not an impermissible commentary on appellant’s silence, but rather an attempt to defend witness’s credibility after attacks of defense counsel). Additionally, we have specifically held that when, as here, the defense uses its summation to accuse a government witness of framing the defendant, the government may in its rebuttal point to the absence of evidence to support such an accusation. See United States v. Pungitore, 910 F.2d 1084, 1124 (3d Cir.1990). It is our view that the government properly did so in the instant case. Brown’s only other argument relating to the prosecution’s summation concerns the following remarks: The judge instructed you to use your common sense, to take things in light of your own life experiences. Was it uncontested or did the defendant’s case— did Officer Hughes say' Camden police, drop the gun? That’s what Officer Hughes testified that he said. Brown failed to object to these comments at trial. We find neither error nor any colorable miscarriage of justice here. See Price, 76 F.3d at 530. Indeed, it appears that a mere prosecutorial slip of the tongue gave rise to the language to which Brown now objects — language with no discernible adverse effect upon the defendant. Read in context, as any such comments must be, the prosecutor’s use of the phrase ‘Was it uncontested or did the defendant’s case — ” appears to be nothing more than an instance of garbled syntax that she immediately corrected with a proper reference to admitted evidence: “Did Officer Hughes say Camden police, drop the gun?” We think the Supreme Court’s observation in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), concerning challenges" }, { "docid": "23667161", "title": "", "text": "See United States v. Durant, 730 F.2d 1180, 1184 (8th Cir.1984), cert. denied, 469 U.S. 843, 105 S.Ct. 149, 83 L.Ed.2d 87 (citations omitted) (jury likely to view government’s sixteen remarks concerning unchallenged testimony as a response to the impeachment attempt, rather than as an adverse comment upon defendant’s silence). Brown also challenges certain of the prosecutor’s remarks during the government’s rebuttal summation as either an attempt to shift the burden of proof to the defense or improper implicit commentary on the defendant’s ’ decision not to testify. In rebuttal, the prosecutor stated: Officer Kelly, he sees Officer Hughes after he’s got him on the ground with the gun pointed — Officer Hughes points the gun out and Officer Kelly goes over and retrieves it. And you have the defendant’s statements. I submit that they’re admissions of guilt, ladies and gentlemen of the jury. Have we heard any suggestion of some motive Officer Hughes would have for making up this story? Examined in context, these remarks clearly do not shift the burden of proof or constitute improper commentary on Brown’s failure to testify. Rather, they simply amount to a proper rebuttal argument. During the defense summation, Brown’s counsel cast doubt upon Officer Hughes’s testimony that he was unaware until trial that the gun recovered at the arrest scene had a broken firing pin, and suggested the possibility that “Officer Hughes planted” the defective and therefore harmless “gun on him, Mr. Brown.” In its rebuttal statement, when the prosecutor asked, “Have we heard any suggestion of some motive Officer Hughes would have for making up this story?”, Brown’s counsel objected and at sidebar accused the government of shifting the burden of proof to the defendant. The District Court overruled the defense objection, stating, I think you opened the door, you called into question Officer Hughes’ credibility, suggested he might have planted the weapon, it was a broken weapon. I think this is fair comment and I don’t think it shifts the burden. The objection is overruled. We find no error in the District Court’s ruling. Indeed, we have at least twice" }, { "docid": "9862449", "title": "", "text": "evidence that Brown conducted interviews before choosing James Herklotz as a Program consultant. It is beyond dispute that any reference to the defendant’s failure to testify or present evidence is highly disfavored; Remarks which are manifestly intended to be, or are of such character that the jury would naturally and necessarily take them to be, comments on defendant’s silence constitute reversible error. United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978). Despite the constitutional prohibition against commenting on defendant’s failure to present evidence, such comments do not automatically compel reversal, for statements which, when considered in isolation, might seem prejudicial may be harmless error when examined in context. United States v. Forrest, 620 F.2d 446 (5th Cir. 1980), appeal after remand, 649 F.2d 355 (5th Cir. 1981). Applying these principles to the facts here, we conclude that Brown suffered no constitutional violation for several reasons. First, each of the challenged court comments were related to the fact that the two defendants adopted different defense strategies. Herklotz made an opening statement and called two witnesses; Brown offered no evidence. The court’s comments were prompted by its efforts to administer the trial in an orderly manner and to advise the jury as to how the trial would proceed. Further, none of these statements referred specifically to the defendant’s own failure to testify. At most, these comments suggested that there was no evidence to support the defense. United States v. Bright, 630 F.2d 804, 826-28 (5th Cir. 1980). Also, any implication that Brown should have presented evidence was cured by the repeated cautionary instructions reminding the jury that a defendant has no such obligation. Tr. at 739, 1947-48. Similarly, the prosecutor’s remark was not harmful error. The prosecutor had just begun to argue that “there isn’t any testimony that Mr. Brown conducted any interviews or received any . . .,” Tr. at 2203, when she was interrupted by defense counsel’s objection. This objection was sustained. Thus, the fleeting reference to the lack of evidence was never completed. There has been no showing that the jury construed this remark as a comment on" }, { "docid": "23667160", "title": "", "text": "the context of the summation as a whole and of the evidence introduced at trial. See Byrd v. Collins, 209 F.3d 486, 533 (6th Cir.2000); United States v. Francis, 82 F.3d 77, 78 (4th Cir.1996). Viewed in the context of the entire summation and all the evidence introduced at Brown’s trial, we cannot agree that the government’s references to “uncontested” testimony necessarily would have been interpreted as a commentary on Brown’s silence. Particularly given the fact that the comment at issue was interrupted and never subsequently completed, there is no 'reason to conclude that the jury would have assumed it referred to Brown’s failure to testify. The jury surely was aware of the numerous aspects of Officer Hughes’s testimony that were unchallenged by defense counsel over the course of the trial. Furthermore, the defense strategy had included numerous attempts to impeach government witnesses. Thus it is more likely that the jury would have understood the prosecutor’s references to “uncontested” testimony as responses to such impeachment attempts rather than as veiled references to the defendant’s silence. See United States v. Durant, 730 F.2d 1180, 1184 (8th Cir.1984), cert. denied, 469 U.S. 843, 105 S.Ct. 149, 83 L.Ed.2d 87 (citations omitted) (jury likely to view government’s sixteen remarks concerning unchallenged testimony as a response to the impeachment attempt, rather than as an adverse comment upon defendant’s silence). Brown also challenges certain of the prosecutor’s remarks during the government’s rebuttal summation as either an attempt to shift the burden of proof to the defense or improper implicit commentary on the defendant’s ’ decision not to testify. In rebuttal, the prosecutor stated: Officer Kelly, he sees Officer Hughes after he’s got him on the ground with the gun pointed — Officer Hughes points the gun out and Officer Kelly goes over and retrieves it. And you have the defendant’s statements. I submit that they’re admissions of guilt, ladies and gentlemen of the jury. Have we heard any suggestion of some motive Officer Hughes would have for making up this story? Examined in context, these remarks clearly do not shift the burden of proof or" }, { "docid": "18122763", "title": "", "text": "direct application to the Federal Government ... forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). A remark is directed to a defendant’s silence when “ ‘the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” Bontempo v. Fenton, 692 F.2d 954, 959 (3d Cir.1982) (quoting United States v. Chaney, 446 F.2d 571, 576 (3d Cir.1971)). Statements regarding the “absence of facts in the reeord[,]” however, “need not be taken as comment on [a] defendant’s failure to testify.” Bontempo, 692 F.2d at 959 (citing Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir.1981)); see also Brown, 254 F.3d at 462-63 (statements by prosecutor in summation did not impermissibly comment on defendant’s silence or shift burden of proof to the defense); United States v. Isaac, 134 F.3d 199, 206-07 (3d Cir.1998) (prosecutor did not violate 5th amendment by stating in his closing argument that “[the defendant] captained that boat from Jamaica, and the only people who would know that [the defendant] captained that boat from Jamaica are [the defendant], Conrad Brown, Irvin Reid, and that fourth individual in Jamaica. Those are the only people”). In the instant case, Brennan argues that the prosecution improperly commented on his failure to testify and suggested to the jury that he had the burden to produce evidence. He points to the following remarks by the prosecution on rebuttal regarding the transfer of the bearer bonds: The next thing that happened is in June, 1995 Mr. Bond says, Mr. Brennan gave him $4 million thereabouts in bearer bonds. We agree there’s no direct evidence of this, except Mr. Bond’s testimony. There was nobody else there except Mr. Brennan and Mr. Gaito [Brennan’s accountant]. There’s also no evidence that this didn’t happen. Mr. Critchley [defense counsel] spent a lot of time on this. On the plane record, the telephone record," }, { "docid": "8162583", "title": "", "text": "States v. Brown, 546 F.2d 166 (5th Cir. 1977). Our inquiry is (1) whether “the prosecutor’s manifest intention was to comment on the accused’s failure to testify” or (2) whether the comment was “ ‘of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” United States v. Chandler, 586 F.2d 593, 603 (5th Cir. 1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979), quoting United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977). The court will not presume prosecutorial bad faith. “We cannot find that the prosecutor manifestly intended to comment on the defendant’s failure to testify, if some other explanation for his remark is equally plausible.” United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977). The comment must be examined in context to determine if reversible error has been committed. United States v. Sorzano, 602 F.2d 1201 (5th Cir. 1979). An examination of the comment demonstrates that it was not the prosecutor’s manifest intention to comment on Frank’s failure to testify, nor would the jury’s attention naturally and necessarily be drawn to Frank’s silence. Frank did not testify at trial but presented an alibi defense consisting of two parts: (1) that he was at the Airline Bar the evening of the robbery, and (2) that he had sufficient funds to pay his auto mechanic for repairs and therefore did not need to rob the Kajun Kitchen to acquire sufficient funds. When viewed in this light, the prosecutor’s comment is but a reference to the weakness of Frank’s alibi. The prosecutor’s argument is replete with references to “the defendant’s defense” and “the defendant’s alibi.” Having relied on Willie Aaron’s testimony, Frank cannot now complain when the prosecution highlights the gaps in that testimony. The prosecutor can respond to defendant’s argument, United States v. Corral-Martinez, 592 F.2d 263, 268-69 (5th Cir. 1979), and ask the jury to draw the natural inferences flowing from defendant’s conduct. United States v. Ward, 552 F.2d 1080, 1083 (5th Cir. 1977), cert." }, { "docid": "23435682", "title": "", "text": "a prosecutor’s comment regarding the balance of evidence or its unrefuted nature is not improper and does not tax the self-incrimination privilege where there are other witnesses who could provide the rebuttal evidence. Kurina v. Thieret, 853 F.2d 1409, 1416 (7th Cir.1988), cert. denied, 489 U.S. 1085, 109 S.Ct. 1544, 103 L.Ed.2d 848 (1989); United States v. DiCaro, 852 F.2d 259, 263 (7th Cir.1988) (comment impermissible “only if it is highly unlikely that anyone other than the defendant could rebut the evidence”); Adkins, 791 F.2d at 597-98; United States v. Castillo, 965 F.2d 238, 244 (7th Cir.), cert. denied, 506 U.S. 874, 113 S.Ct. 212, 121 L.Ed.2d 152 (1992) (proper to comment that no evidence supported defendant’s defense). The prosecutor’s comment in this case was clearly not a direct remark on Butler’s decision not to testify. The defense argued during closing that Officer Figueroa planted the gun on Butler and that Officer Figueroa should not be believed because he had planted evidence in the past. In response, the prosecutor argued that what Officer Figueroa may have done in the past was irrelevant, and that the defense was simply attempting to smear the officer. Directly following this argument, the prosecutor stated: “there is nothing preventing Mr. Murphy [defense counsel] from presenting any evidence in this case. It is a trial. And if he had any evidence that supports his view of the facts he would have submitted it to you....” The comment was addressed to defense counsel, Mr. Murphy and referred to “any evidence”; it did not directly refer to Mr. Butler’s testimony. We also agree with the district court that the remark was not an improper indirect comment on Butler’s silence. We do not find that the prosecutor’s remarks were “manifestly intended” to be a comment on Butler’s silence, nor do we believe the jury would “naturally and necessarily” take them as such. When viewed in context, the prosecutor’s statement was a reference to the defense’s failure to support their theory that Officer Figueroa lied about finding Butler with the gun. It was an indirect way of stating that the" }, { "docid": "23667159", "title": "", "text": "walked down Clinton Street before seeing Brown. The trial court had every right, in the exercise of its sound discretion, to credit that explanation of the prosecutor’s interrupted comments to the extent it saw fit. See United States v. Mabry, 3 F.3d 244, 248 (8th Cir.1993), cert. denied, Edwards v. U.S., 511 U.S. 1020, 114 S.Ct. 1403, 128 L.Ed.2d 75, abrogation on other grounds recognized in United States v. Sheppard, 219 F.3d 766, 767 (8th Cir.2000), cert. denied, - U.S.-, 121 S.Ct. 1208, 149 L.Ed.2d 121 (2001). Given the fact that the District Court accepted this reasonable explanation, we are unable to find that the prosecutor’s remarks were “manifestly intended” or would “naturally [be taken],” Bontempo, 692 F.2d at 958, as a comment on Brown’s silence. Brown also asserts that the government’s comments “necessarily” reminded the jury of the defendant’s failure to testify at trial. This argument, too, is unpersuasive. The claim that a prosecutor’s remark necessarily would be perceived by a jury as an adverse comment on the accused’s silence must be assessed in the context of the summation as a whole and of the evidence introduced at trial. See Byrd v. Collins, 209 F.3d 486, 533 (6th Cir.2000); United States v. Francis, 82 F.3d 77, 78 (4th Cir.1996). Viewed in the context of the entire summation and all the evidence introduced at Brown’s trial, we cannot agree that the government’s references to “uncontested” testimony necessarily would have been interpreted as a commentary on Brown’s silence. Particularly given the fact that the comment at issue was interrupted and never subsequently completed, there is no 'reason to conclude that the jury would have assumed it referred to Brown’s failure to testify. The jury surely was aware of the numerous aspects of Officer Hughes’s testimony that were unchallenged by defense counsel over the course of the trial. Furthermore, the defense strategy had included numerous attempts to impeach government witnesses. Thus it is more likely that the jury would have understood the prosecutor’s references to “uncontested” testimony as responses to such impeachment attempts rather than as veiled references to the defendant’s silence." }, { "docid": "21706310", "title": "", "text": "denied, 529 U.S. 1027, 120 S.Ct. 1437, 146 L.Ed.2d 326 (2000). The prosecutor’s re marks are not a manifest comment on the defendant’s silence if there is some other, equally plausible, explanation for the remark. Cotton v. Cockrell, 343 F.3d at 751; United States v. Green, 324 F.3d 375, 381-82 (5th Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 152, 157 L.Ed.2d 43 (2003); United States v. Virgen-Moreno, 265 F.3d at 291; Barrientes v. Johnson, 221 F.3d at 780; Jackson v. Johnson, 194 F.3d at 652. As for whether the jury would naturally and necessarily construe a remark as a comment on the defendant’s failure to testify, the question is not whether the jury possibly or even probably would view the challenged remark in this manner but whether the jury necessarily would have done so. Cotton v. Cockrell, 343 F.3d at 751; United States v. Virgen-Moreno, 265 F.3d at 291; Barrientes v. Johnson, 221 F.3d at 780; Jackson v. Johnson, 194 F.3d at 652. 3. Synthesis Viewed in proper context, none of the prosecution’s allegedly objectionable comments, including the one to which the state trial court sustained petitioner’s trial counsel’s objection either manifested a prosecu-torial intent to comment on petitioner’s failure to testify at trial, or were of such a character as to necessarily have been construed by the jury as a comment on petitioner’s failure to testify. On the contrary, given the evidence then before petitioner’s capital sentencing jury, especially the punishment-phase testimony of petitioner’s father and petitioner’s former girlfriend about petitioner’s unwillingness to accept responsibility for his rape convictions, the prosecutor’s comments were a clear and direct response to defense counsel’s arguments suggesting petitioner’s status as a “model prisoner” during a prior term of incarceration meant petitioner could be rehabilitated. See Buxton v. Collins, 925 F.2d 816, 825 (5th Cir.) (recognizing the four proper areas for prosecutorial jury argument are summation of the evidence, reasonable inference from the evidence, answers to opposing counsel’s argument, and pleas for law enforcement), cert. denied, 498 U.S., 1128, 111 S.Ct. 1095, 112 L.Ed.2d 1197 (1991); Watts v. Quarterman, 448 F.Supp.2d 786, 814-16" }, { "docid": "11641782", "title": "", "text": "188 (7th Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978); United States v. Sanders, 547 F.2d 1037, 1042 (8th Cir.1976), cert. denied, 431 U.S. 956, 97 S.Ct. 2679, 53 L.Ed.2d 273 (1977). Both tests require attention to the context of the prosecutor’s remarks — the argument itself, and the larger context of the evidence introduced at trial. Williams v. Wainwright, supra, 673 F.2d at 1184. In the instant case, the government explains its remarks as a response to defense attempts to undermine and impeach Swinney’s testimony. The record supports this explanation. The defense vigorously cross-examined Swinney concentrating on the areas where he had contradicted himself in prior testimony. Examination of the full text of the prosecution’s final argument reveals that the litany of “no contradictions” was used to characterize the unchallenged portions of Swinney’s testimony. Given this support in the record, we conclude that the prosecutor’s closing remarks were intended to counter the defense strategy, not call attention to Farris’s failure to testify. In view of the record, we also conclude the jury would not have “naturally and necessarily” viewed the prosecutor’s remarks as a comment on the defendant’s failure to testify. The jury must have been aware of the defense strategy to impeach Swinney after listening to the cross-examination of his testimony. By the final argument, they were as likely, if not more likely, to view the government's remarks as a response to the impeachment attempt as they were to view these remarks as a comment upon the defendant’s silence. We thus hold that in the context of this case, the prosecution’s remarks were not improper. B. Durant’s Arguments. Durant raises a suppression issue separate from the one raised by Farris. After taking him into custody on a warrant unrelated to the bank robbery, two officers escorted Durant out of the apartment building to where the squad car was parked in the street. Without first informing Durant of his Miranda rights, one of the officers asked him if he had a car parked nearby. Durant indicated the blue Oldsmobile, and one of the officers" }, { "docid": "9862450", "title": "", "text": "Brown offered no evidence. The court’s comments were prompted by its efforts to administer the trial in an orderly manner and to advise the jury as to how the trial would proceed. Further, none of these statements referred specifically to the defendant’s own failure to testify. At most, these comments suggested that there was no evidence to support the defense. United States v. Bright, 630 F.2d 804, 826-28 (5th Cir. 1980). Also, any implication that Brown should have presented evidence was cured by the repeated cautionary instructions reminding the jury that a defendant has no such obligation. Tr. at 739, 1947-48. Similarly, the prosecutor’s remark was not harmful error. The prosecutor had just begun to argue that “there isn’t any testimony that Mr. Brown conducted any interviews or received any . . .,” Tr. at 2203, when she was interrupted by defense counsel’s objection. This objection was sustained. Thus, the fleeting reference to the lack of evidence was never completed. There has been no showing that the jury construed this remark as a comment on Brown’s silence. United States v. Jones, 648 F.2d 215 (5th Cir. 1981). In view of the facts that the comment was never completed, that the jury may never have construed the indirect allusion as a comment on Brown’s silence and that the objection was sustained, the statement was harmless error. United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976). B Appellants contend that violation of the court order barring testimony relating to their firing from the Program also denied them a fair trial. They cite two instances in which they claim the court order was violated. The first incident occurred during the direct examination of government witness Schlimm. He was asked when he had been acquainted with Brown. He responded, “From the time he was hired ... to the time he was suspended .. . . ” (Tr. at 408-09). The second incident occurred on redirect examination of government witness Conti, after defense counsel had questioned Conti about a conversation he had had with Brown in which Brown stated that he had been fired." }, { "docid": "18122762", "title": "", "text": "that Bond’s testimony was gained by virtue of an agreement and that the Government’s star witness had his own credibility problems. Indeed the making of such “judgments” - routine exercises of prosecutorial discretion - commonly form the basis of defense attacks upon the prosecution when an uncharged accomplice cooperates by providing testimony. Since it was obvious to the jury that the Govern ment had charged Brennan, and since they learned from the testimony that the Government had not charged Bond, the prosecutor’s remark conveyed to the jurors no more than they already knew. See Saada, 212 F.3d at 225 (holding that prosecutor’s reference to cooperation agreements with Government witnesses was not plain error); Milan, 304 F.3d at 289-90 (holding that it was not improper for prosecutor to refer to testimony about prosecution of Government witnesses before they decided to cooperate). Accordingly, we conclude that none of the challenged remarks constitute improper vouching. B. Comment on Brennan’s Failure to Testify In Griffin v. State of California, the Supreme Court held “that the Fifth Amendment, in its direct application to the Federal Government ... forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). A remark is directed to a defendant’s silence when “ ‘the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” Bontempo v. Fenton, 692 F.2d 954, 959 (3d Cir.1982) (quoting United States v. Chaney, 446 F.2d 571, 576 (3d Cir.1971)). Statements regarding the “absence of facts in the reeord[,]” however, “need not be taken as comment on [a] defendant’s failure to testify.” Bontempo, 692 F.2d at 959 (citing Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir.1981)); see also Brown, 254 F.3d at 462-63 (statements by prosecutor in summation did not impermissibly comment on defendant’s silence or shift burden of proof to the defense); United States v. Isaac, 134 F.3d 199, 206-07" }, { "docid": "14996071", "title": "", "text": "were, we then consider them in context and ask whether they denied the defendant a fair trial. Renteria, 106 F.3d at 766. First is the prosecutor’s reference — two times — to portions of the government’s evidence as “unrebutted” or “not contested.” The Fifth Amendment forbids prosecutors from inviting the jury to draw an adverse inference from a defendant’s decision not to testify. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). This rule prohibits indirect as well as direct comments to this effect. United States v. Aldaco, 201 F.3d 979, 987 (7th Cir.2000). As the majority points out, indirect requests to draw adverse inferences from the defendant’s silence violate the Fifth Amendment only if (1) the prosecutor manifestly intended to refer to the defendant’s silence or (2) a jury would naturally and necessarily take the remark for a comment on the defendant’s silence. United States v. Mietus, 237 F.3d 866, 871 (7th Cir.2001). However, this court has repeatedly held that, if a prosecutor points out that certain evidence is “unrebutted” or “uncontested,” and if the only person who could reasonably be expected to rebut the evidence is the defendant himself, then such comments naturally and necessarily call the jury’s attention to the defendant’s failure to testify. See, e.g., Mietus, 237 F.3d at 871; Aldaco, 201 F.3d at 987; United States v. Cotnam, 88 F.3d 487, 497 (7th Cir.1996) (collecting cases). Essentially, these cases carve out a narrow class of comments that refer indirectly to the defendant’s failure to testify — remarks that testimony is unrebutted when only the defendant could have supplied a rebuttal— and hold that this type of comment always naturally and necessarily involves a comment on the defendant’s silence. Both of the statements Harris challenges ran afoul of this rule. The first statement referred back to Berry Young’s testimony that Harris backed out of the drug deal at the Citgo because Harris was concerned that “Sam,” a man who had recently been arrested for selling drugs and who might be cooperating with the police, was there. In his closing, the prosecutor argued" }, { "docid": "23667157", "title": "", "text": "believes came from Edmonds Avenue came out excited, started yelling there’s a guy with a gun around New Street in the area of New and 7th, carrying a gun. He’s waving it around. What does Officer Hughes do? He testifies, and I’ll submit to you there has been no challenge to this testimony, it’s uncontested.... At this point, Brown’s counsel interrupted the prosecutor and objected, claiming that the government was attempting to shift the burden of proof to the defendant and asserting that the “evidence has been challenged, it’s been denied.” At sidebar, the prosecutor explained that she had intended to complete her interrupted remark with the words, “it was uncontested that [Officer Hughes] walked down the street.” The District Court accepted the prosecution’s explanation and concluded that the remark in its entirety would have constituted “fair comment” on the evidence. The Court also noted that it was clear from the charge and Brown’s not guilty plea that he was contesting the charge and overruled the defense objection. Brown complains on appeal not that- the prosecutor’s remarks unfairly shifted the burden of proof but rather that they constituted impermissible commentary on the accused’s silence. We conclude, however, that prosecutor’s remarks did not constitute impermissible commentary on Brown’s decision not to testify at trial. In this case, the government did not make a direct comment concerning Brown’s silence; the only aspect of the summation of which Brown now complains is the formulation, “there has been no challenge to his testimony, it’s uncontested.” We have held that a prosecutor’s remark that any aspect of the government’s evidence was “undisputed” or “uncontra-dicted” at trial constitutes an improper comment on a defendant’s silence only where “the language used was manifestly intended or was of such a character that the jury would naturally take it to be a comment on the failure of the accused to testify.” Bontempo v. Fenton, 692 F.2d 954, 958 (3d Cir.1982). Brown has failed to satisfy either of these requirements. As the government explained at sidebar, the comments in question went only to the relatively innocuous fact that Officer Hughes" }, { "docid": "9862448", "title": "", "text": "next consider whether the appellants were denied their constitutional right to a fair trial by the prosecutor’s and the court’s comments alluding to Brown’s silence, by the alleged violation of the court’s order barring testimony relating to defendants’ firing, and by the court’s limitation on the scope of defense counsel’s closing argument. A Brown contends that four comments made in the course of the thirteen day trial regarding his failure to present evidence resulted in constitutional error. The challenged comments were: (1) the court’s statement, in response to defense counsel’s request that the government be ordered to recall a witness, that defense counsel could subpoena the witness; (2) the court’s statement, in response to defense counsel’s attempt to introduce documents during the cross-examination of a government witness, that defense counsel could “attempt to introduce them at the time of [his] case.” Tr. at 729-A; (3) the court’s statement, at the end of the government’s case-in-chief, that Herklotz would present her case first; and (4) the prosecutor’s remark, during closing argument, about the lack of any evidence that Brown conducted interviews before choosing James Herklotz as a Program consultant. It is beyond dispute that any reference to the defendant’s failure to testify or present evidence is highly disfavored; Remarks which are manifestly intended to be, or are of such character that the jury would naturally and necessarily take them to be, comments on defendant’s silence constitute reversible error. United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978). Despite the constitutional prohibition against commenting on defendant’s failure to present evidence, such comments do not automatically compel reversal, for statements which, when considered in isolation, might seem prejudicial may be harmless error when examined in context. United States v. Forrest, 620 F.2d 446 (5th Cir. 1980), appeal after remand, 649 F.2d 355 (5th Cir. 1981). Applying these principles to the facts here, we conclude that Brown suffered no constitutional violation for several reasons. First, each of the challenged court comments were related to the fact that the two defendants adopted different defense strategies. Herklotz made an opening statement and called two witnesses;" }, { "docid": "23667156", "title": "", "text": "Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The total circumstances in the present case include the facts that the declarants accompanied Officer Hughes to the location where they pointed out Brown and that Brown was indeed visibly carrying a gun in his hand. For the above reasons, we conclude that the testimony of Officer Hughes concerning the statements of the two men was properly admitted into evidence by the District Court under the “excited utterance” exception to the hearsay rule. B. SUMMATION REMARKS We now consider Brown’s contentions regarding certain of the prosecutor’s summation remarks. Because Brown either failed to object to the comments at trial or lodged different objections to them, we can only review the comments for plain error. See United States v. Walker, 155 F.3d 180, 187 (3d Cir.1998) (prosecutorial remarks as to which no objection is made at trial are reviewed only for plain error); Fed. R.Crim.P. 52(b). Brown first objects to the following remarks of the prosecutor during the government’s initial summation: Two men which he believes came from Edmonds Avenue came out excited, started yelling there’s a guy with a gun around New Street in the area of New and 7th, carrying a gun. He’s waving it around. What does Officer Hughes do? He testifies, and I’ll submit to you there has been no challenge to this testimony, it’s uncontested.... At this point, Brown’s counsel interrupted the prosecutor and objected, claiming that the government was attempting to shift the burden of proof to the defendant and asserting that the “evidence has been challenged, it’s been denied.” At sidebar, the prosecutor explained that she had intended to complete her interrupted remark with the words, “it was uncontested that [Officer Hughes] walked down the street.” The District Court accepted the prosecution’s explanation and concluded that the remark in its entirety would have constituted “fair comment” on the evidence. The Court also noted that it was clear from the charge and Brown’s not guilty plea that he was contesting the charge and overruled the defense objection. Brown complains on appeal not that- the" } ]

[ { "docid": "22471912", "title": "", "text": "to the Commissioner for further proceedings. Id. Moreover, while it is true that the Commissioner bears the burden at step five, “the ALJ, unlike a judge in a trial, must [her]self affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.” Pratts v. Chafer, 94 F.3d 34, 37 (2d Cir.1996) (internal quotation marks omitted; alteration in original). Because Social Security disability determinations are non-adversarial, “the Commissioner is not a litigant and has no representative at the agency level. Indeed, the model is investi gatory, or inquisitorial, rather than adversarial.” Seavey, 276 F.3d at 8. Thus, “[i]t is the ALJ’s duty to investigate and develop the facts and develop the arguments both for and against the granting of benefits.” Id. The ALJ therefore owes a duty to the Commissioner as well as to the claimant. Unlike Curry, where “no purpose would be served by our remanding,” 209 F.3d at 124 (internal quotation marks omitted), the evidence in the instant case is sufficient to support a finding that Butts could perform sedentary and perhaps some light work. However, the ALJ failed to develop the record as to whether Butts’ nonexertional limitations preclude him from performing other work in the national economy. Like the ALJ in Rosa, the ALJ at Butts’ hearing “failed to fulfill her duty,” 168 F.3d at 83 (internal quotation marks omitted) — in this case, by neglecting to consult a vocational expert. Because the ALJ failed to call a vocational expert, the record is incomplete and “further findings” are appropriate “to assure the proper disposition of [the] claim.” Id. (internal quotation marks omitted). The district court’s remand for further proceedings was therefore within its discretion. In so holding, we note two caveats. First, a remand is proper where the error is found in an ALJ’s failure to apply correctly the distinction between cases where reliance on the grid suffices and those where the testimony of a vocational expert is essential to a denial of benefits. See Rosa, 168 F.3d at 78. However, were a claimant to show that Social Security ALJs reject this distinction" } ]

[ { "docid": "22406831", "title": "", "text": "Arnone, 882 F.2d at 37. It is the rule in our circuit that “the ALJ, unlike a judge in a trial, must [her]self affirmatively develop the record” in light of “the essentially non-adversarial nature of a benefits proceeding.” Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir.1982). This duty arises from the Commissioner’s regulatory obligations to develop a complete medical record before making a disability determination, 20 C.F.R. § 404.1512(d)-(f) (1995), and exists even when, as here, the claimant is represented by counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). Based on the administrative record before us, we believe that the ALJ did not fulfill her duty in Pratts’s case in several respects. We therefore find that her decision to deny Pratts benefits is not supported by substantial evidence. First, and most remarkably, the hearing record upon which the ALJ relied was significantly compromised by the failure to transcribe a portion of Dr. Bonilla’s testimony. In a case such as this, where the assessment of disability involves careful consider ation of medical evidence, the testimony of the only medical expert must figure prominently in the ALJ’s decision making. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 261 (2d Cir.1988) (findings of ALJ must be consistent with medical evidence); Bell v. Secretary of HHS, 732 F.2d 308, 310-12 (2d Cir.1984) (ALJ must carefully examine medical evidence, taking into account the entire record). Indeed, the ALJ referred extensively to Dr. Bonilla’s testimony in her evaluation of the medical evidence and stated that she agreed with his conclusions. Without the benefit of a complete transcript, however, the bases for these conclusions were lost to the ALJ, the Appeals Council, the district court, and now to us. It is surprising that the Appeals Council did not remedy this problem at the first level of review by granting Pratts a new hearing. See, e.g., Scime v. Bowen, 822 F.2d 7, 8 (2d Cir.1987) (new hearing granted when taped transcript was inaudible). Faced with such an incomplete record of Pratts’s hearing, we of course cannot say the ALJ’s decision is supported" }, { "docid": "9274881", "title": "", "text": "here, a plaintiff proceeds pro se, the court should \"read [her] supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest.\" Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S. Co. , 988 F.2d 327, 330 (2d Cir. 1993) ). \"Even where a motion for judgment on the pleadings is unopposed, the Court must still review the entire record and ensure that the moving party is entitled to judgment as a matter of law.\" Mancebo v. Comm'r of Soc. Sec. , 2017 WL 4339665, at *2 (S.D.N.Y. Sept. 29, 2017) (quoting Graham v. Comm'r of Soc. Sec. , 2017 WL 1232493, at *1 (E.D.N.Y. Mar. 31, 2017) ). A. The ALJ Satisfied Her Duty to Develop the Record \"Whether the ALJ has met his duty to develop the record is a threshold question\" which the Court must determine \"[b]efore reviewing whether the Commissioner's final decision is supported by substantial evidence.\" Craig v. Comm'r of Soc. Sec. , 218 F.Supp.3d 249, 261 (S.D.N.Y. 2016). \"[T]he social security ALJ, unlike a judge in a trial, must on behalf of all claimants ... affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.\" Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citations omitted). It is the ALJ's duty \"to investigate and develop the facts and develop the arguments both for and against the granting of benefits.\" Id. at 112-13. The regulations provide that before determining that a claimant is not disabled, the SSA will develop a claimant's \"complete medical history for at least the 12 months preceding the month in which\" a claimant files his or her application, and will \"make every reasonable effort to help [the claimant] get medical reports\" from her \"medical sources,\" that is, the physicians who treated her for the conditions underlying her application. 20 C.F.R. §§ 404.1512(d) (2015), 416.912(d) (2015). \"Every reasonable effort\" means \"an initial request for evidence\" from the claimant's medical sources \"and, at any time between 10 and 20 calendar days after" }, { "docid": "22406830", "title": "", "text": "626 F.2d 225, 231 (2d Cir.1980). We therefore focus our attention on the administrative ruling rather than on the decision of the district court. Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991); Wagner v. Secretary of HHS, 906 F.2d 856, 860 (2d Cir.1990). It is not our function to determine de novo whether Pratts is disabled, Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir.1984), and “we may only set aside a determination which is based upon legal error or not supported by substantial evidence.” Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). “Substantial evidence” has been defined by the Supreme Court as “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 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)); see also Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir.1995); Arnone, 882 F.2d at 37. It is the rule in our circuit that “the ALJ, unlike a judge in a trial, must [her]self affirmatively develop the record” in light of “the essentially non-adversarial nature of a benefits proceeding.” Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir.1982). This duty arises from the Commissioner’s regulatory obligations to develop a complete medical record before making a disability determination, 20 C.F.R. § 404.1512(d)-(f) (1995), and exists even when, as here, the claimant is represented by counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). Based on the administrative record before us, we believe that the ALJ did not fulfill her duty in Pratts’s case in several respects. We therefore find that her decision to deny Pratts benefits is not supported by substantial evidence. First, and most remarkably, the hearing record upon which the ALJ relied was significantly compromised by the failure to transcribe a portion of Dr. Bonilla’s testimony. In a case such as this, where the assessment of disability involves careful consider ation of" }, { "docid": "17884145", "title": "", "text": "we will develop your complete medical history ... [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.” (quoting 20 C.F.R. § 404.1512(d))); see also Robins v. Astrue, No. CV-10-3281 (FB), 2011 WL 2446371, at *3 (E.D.N.Y. June 15, 2011) (“Although the regulation provides that the lack of such a statement will not render a report incomplete, it nevertheless promises that the Commissioner will request one.”). Here, as noted above, the Court conducted a thorough and careful review of the administrative record. The record contains over one-hundred pages of well documented medical source documents from NUMC and its HIV Clinic over a three-year period from September 2006 until September 2009 (AR at 153-68, 182-270), exceeding the regulations’ requirements for a complete medical history under 20 C.F.R. § 416.912(d). In addition, the record includes a report from consultative examiner, Dr. Skeene, disability analyst A. Tolliver, and plaintiffs detailed testimony at the hearing, regarding his functional capacity. However, there is no reference in the decision or the record as a whole that the ALJ requested RFC assessments from plaintiffs treating sources. The Commissioner contends that the medical records obtained were sufficient to make a disability determination. (See Comm’r’s Reply at 2 (citing Rosa v. Callahan, 168 F.3d at 79 n. 5 (“[W]here there are no obvious gaps in the administrative record, and where the ALJ already pos sesses a complete medical history the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.”))). However, as stated above, the Commissioner’s regulations explicitly state otherwise. Robins, 2011 WL 2446371, at *3 (“Although the regulation provides that the lack of such a statement will not render a report incomplete, it nevertheless promises that the Commissioner will request one.”). First, § 404.1512(d) provides “[w]e will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.” Id; see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). Second, “§ 404.1513(b)(6)" }, { "docid": "17483633", "title": "", "text": "about any subjective complaints and the impact of the claimant’s impairments on the claimant’s functional capacity.” Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted). Whether the ALJ has met his duty to develop the record is a threshold question. Before reviewing whether the Commissioner’s final decision is supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary’s regulations’ and also fully and completely developed the administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law.”) (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999)). The ALJ must develop the record even where the claim ant has legal counsel. Perez, 77 F.3d at 47. Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114-15 (“We vacate not because the ALJ’s decision was not supported by substantial evidence but because the ALJ should have developed a more comprehensive record before making his decision”). c. Treating Physician’s Rule “Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. § 404.1527(c), 416.927(d)) (internal quotation marks omitted). A treating physician’s opinion is given controlling weight, provided the opinion as to the nature and severity of an impairment “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). The regulations defíne a treating physician as the claimant’s “own physician, psychologist, or other acceptable medical" }, { "docid": "19512806", "title": "", "text": "found that the plaintiff has retained the residual functional capacity (\"RFC\") to perform sedentary work, except that she requires a sit/stand option that allows her to change positions every 60 minutes for up to 5 minutes without leaving her workstation. Plaintiff cannot climb ropes, ladders or scaffolds, and cannot balance on narrow, slippery or moving surfaces. She can occasionally stoop, crouch, kneel and crawl, and cannot tolerate exposure to hazards, such as unprotected heights or dangerous machinery. Plaintiff can tolerate occasional exposure to extreme temperatures, wetness, humidity and concentrated airborne irritants. She cannot work in isolation, can tolerate only occasional changes in the work setting, can have occasional interaction with the public, cannot perform teamwork, but can meet daily goals. She cannot maintain an hourly, machine driven, assembly line production rate. (Dkt. # 7 at 24-25). When presented with this RFC, vocational expert Carol G. McManus testified that plaintiff could perform the positions of call-out operator, telephone quotation clerk, and table worker. (Dkt. # 7 at 29). Plaintiff argues that the ALJ erred when she assessed the effect of plaintiff's depression on her RFC without the benefit of a medical opinion, and that her decision was therefore a lay opinion, based on an incomplete record. The Court concurs. \"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record. This duty exists even when the claimant is represented by counsel.\" Perez v. Chater , 77 F.3d 41, 47 (2d Cir. 1996). While it is not per se error for an ALJ to make an RFC determination without relying on a medical opinion, the ALJ's determination must be supported by substantial evidence of record. See Tankisi v. Commissioner , 521 Fed.Appx. 29 (2d Cir. 2013). Thus, where the record is not otherwise complete and fails to meaningfully address a claimant's functional physical and/or mental limitations, the ALJ's duty to further develop the record is triggered, and the ALJ's failure to satisfy that duty is reversible error. See Williams v. Colvin , 2016 U.S. Dist. LEXIS 51621 at *12-*13 (W.D.N.Y. 2016)." }, { "docid": "19445730", "title": "", "text": "DISCUSSION An ALJ applies a well-established five-step evaluation process to determine whether a claimant is disabled within the meaning of the Social Security Act, familiarity with which is presumed. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the correct legal standards. See 42 U.S.C. § 405(g) ; Machadio v. Apfel , 276 F.3d 103, 108 (2d Cir. 2002). Here, the ALJ determined that plaintiff has suffered from the following severe impairments: migraine headaches, anxiety, depression, hand numbness and fibromyalgia. (Dkt. # 8 at 16). After reviewing of the evidence of record, the ALJ found that the plaintiff has retained the residual functional capacity (\"RFC\") to perform sedentary work, except that she should have no more than occasional exposure to dust, odors, fumes and gases and extreme hot and cold temperatures and humidity. The plaintiff should not be required to work in direct sunlight. She can frequently reach, handle, finger, and feel. She is limited to goal-oriented work rather than production pace work. She should be permitted to wear sunglasses while working. (Dkt. # 8 at 18). When presented with this RFC, vocational expert Linda N. Vause testified that plaintiff could perform the positions of document preparer, information clerk, and addresser. (Dkt. # 8 at 21). Plaintiff argues that the ALJ erred when she assessed the effect of plaintiff's depression and anxiety on her RFC without the benefit of a medical opinion, and that her decision was therefore a lay opinion, based on an incomplete record. The Court concurs. \"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record. This duty exists even when the claimant is represented by counsel.\" Perez v. Chater , 77 F.3d 41, 47 (2d Cir. 1996). While it is not per se error for an ALJ to make an RFC determination without relying on a medical opinion, the ALJ's" }, { "docid": "17483651", "title": "", "text": "weight”-was that it-was “wholly unsupported by treatment records.” R. at 17. However, the absence of Dr. Hameedi’s treatment records indicates that the ALJ did not fulfill his duty to develop the record and obtain Craig’s complete medical history prior to rendering his decision. See 20 C.F.R. § 404.1512(d); Hidalgo, 2014 WL 2884018, at *19-20 (ALJ’s reliance on gaps in administrative record to disregard treating psychiatrist’s opinion was legal error). The ALJ has an affirmative duty to develop the administrative record, even where the claimant is represented by counsel, as Craig was. See Pratts, 94 F.3d at 37 (“It is the rule in our circuit that the ALJ, unlike a judge in a trial, must herself affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.”); Velez v. Colvin, No. 15-CV-487 (SAS), 2015 WL 8491485, at *7 (S.D.N.Y. Dec. 9, 2015). The ALJ’s failure to develop the record is a threshold issue, because “the Court cannot rule on whether the ALJ’s decision regarding [the claimant’s] functional capacity was supported by substantial evidence if the determination was based on an incomplete record.” Jackson v. Colvin, No. 13-CV-5655 (AJN) (SN), 2014 WL 4695080, at *18 (S.D.N.Y. Sept. 3, 2014). The administrative record does not contain any of Dr. Hameedi’s treatment records, and there is no evidence that the ALJ made attempts to obtain them. “The agency is required affirmatively to seek out additional evidence only where there are obvious gaps in the administrative record.” Eusepi v. Colvin, 595 Fed.Appx. 7, 9 (2d Cir. 2014) (internal quotation marks omitted) (emphasis added). The absence of Dr. Hameedi’s treatment records qualifies as an “obvious gap” for two reasons. First, Dr. Hameedi was Craig’s treating psychiatrist, and an ALJ is mandated by statute to “‘make every reasonable effort to obtain from the individual’s treating physician ... all medical evidence ... necessary in order to properly make’ the disability determination.” Cruz v. Astrue, 941 F.Supp.2d 483, 495 (S.D.N.Y. 2013) (quoting 42 U.S.C. § 423(d)(5)(B)). The duty to develop the administrative record “takes on heightened significance” when the medical records are from a claimant’s" }, { "docid": "9274882", "title": "", "text": "social security ALJ, unlike a judge in a trial, must on behalf of all claimants ... affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.\" Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citations omitted). It is the ALJ's duty \"to investigate and develop the facts and develop the arguments both for and against the granting of benefits.\" Id. at 112-13. The regulations provide that before determining that a claimant is not disabled, the SSA will develop a claimant's \"complete medical history for at least the 12 months preceding the month in which\" a claimant files his or her application, and will \"make every reasonable effort to help [the claimant] get medical reports\" from her \"medical sources,\" that is, the physicians who treated her for the conditions underlying her application. 20 C.F.R. §§ 404.1512(d) (2015), 416.912(d) (2015). \"Every reasonable effort\" means \"an initial request for evidence\" from the claimant's medical sources \"and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, [ ] one followup request to obtain the medical evidence necessary to make a determination.\" 20 C.F.R. §§ 404.1512(d)(1) (2015), 416.912(d)(1) (2015). Medical reports should include medical history, clinical and laboratory findings, diagnosis, treatment prescribed (with response and prognosis), and \"[a] statement about what [the claimant] can still do despite [her] impairment(s).\" 20 C.F.R. §§ 404.1513(b)(6) (2013), 416.913(b)(6) (2013). Thus, the ALJ should obtain, from the claimant's treating physicians, \"expert opinions as to the nature and severity of the claimed disability.\" Oliveras ex rel. Gonzalez v. Astrue , 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008) (quoting Pabon v. Barnhart, 273 F.Supp.2d 506, 514 (S.D.N.Y. 2003) ) (alteration in original; internal quotation marks omitted), report and recommendation adopted, 2008 WL 2540816 (S.D.N.Y. June 25, 2008). See Hooper v. Colvin , 199 F.Supp.3d 796, 812 (S.D.N.Y. 2016) (quoting Molina v. Barnhart , 2005 WL 2035959, at *6 (S.D.N.Y. Aug. 17, 2005) ) (\"the ALJ must 'make every reasonable effort to obtain not merely the medical" }, { "docid": "17483634", "title": "", "text": "even where the claim ant has legal counsel. Perez, 77 F.3d at 47. Remand is appropriate where this duty is not discharged. See, e.g., Moran, 569 F.3d at 114-15 (“We vacate not because the ALJ’s decision was not supported by substantial evidence but because the ALJ should have developed a more comprehensive record before making his decision”). c. Treating Physician’s Rule “Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. § 404.1527(c), 416.927(d)) (internal quotation marks omitted). A treating physician’s opinion is given controlling weight, provided the opinion as to the nature and severity of an impairment “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). The regulations defíne a treating physician as the claimant’s “own physician, psychologist, or other acceptable medical source who provides [the claimant] ... with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502. Deference to such a medical provider is appropriate because they “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical evidence alone or from reports of individual examinations.” 20 C.F.R. § 404.1527(c)(2). A treating physician’s opinion is not always controlling. For example, a legal conclusion “that the claimant is ‘disabled’ or ‘unable to work’ is not controlling,” because such opinions are reserved for the Commissioner. Guzman v. Astrue, No. 09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician’s statement that the claimant is disabled cannot itself be determinative.”). Additionally, where “the treating physician issued opinions that [were] not" }, { "docid": "19717151", "title": "", "text": "— or provide “good reasons” for not doing so, as required by 20 C.F.R. § 404.1527(c)(2) — constituted plain error. Calzada, 753 F.Supp.2d at 269 (“[A]n ALJ’s failure to acknowledge relevant evidence or to explain its implicit rejection is plain error.”) (internal quotation marks omitted); Baldwin v. Astrue, No. 07 Civ. 6958, 2009 WL 4931363, at *18 (S.D.N.Y. Dec. 21, 2009) (Howell, J.) (same); Pagan v. Chater, 923 F.Supp. 547, 556 (S.D.N.Y.1996) (Conner, J.) (same). To the extent the ALJ was uncertain about whether Dr. Albert’s conclusion that Plaintiff was “[t]emporary [sic] totally disabled” indicated that Plaintiff was unable to conduct lighter forms of work, the ALJ was under an obligation to seek additional evidence from Dr. Albert. An ALJ may not reject a treating physician’s conclusions for lack of clear findings without first attempting to fill in the gaps in the administrative record. Rosa, 168 F.3d at 79 (concluding it was error for the ALJ to attach significance to omissions by the treating physician rather than seek more information). “It is the rule in our circuit that ‘the ALJ, unlike a judge in a trial, must ... affirmatively develop the record’ in light of ‘the essentially non-adversarial nature of a benefits proceeding.’ ” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996) (quoting Echevarria v. Sec’y of HHS, 685 F.2d 751, 755 (2d Cir.1982)). This duty arises from the agency’s regulatory obligation to develop a complete medical record before making a disability determination, 20 C.F.R. § 404.1512(d)-(f) (2011), and exists even where, as here, the claimant is represented by counsel. The ALJ discredited Dr. Mattheos’ conclusion that Plaintiff was unable to work because the ALJ found that conclusion “contradicted by the weight of the clinical and diagnostic evidence [in the] record.” Tr. 43. The ALJ did not specify which clinical and diagnostic evidence contradicted Dr. Mattheos’ conclusion, and did not apply the factors required under 20 C.F.R. 404.1527(c) to determine how much weight to afford Dr. Mattheos’ opinion, failures that arguably require reversal. See, e.g., Norman v. Astrue, 912 F.Supp.2d 33, 41-42 (S.D.N.Y.2012) (Carter, J.) (ALJ’s conclusion that treating" }, { "docid": "17884143", "title": "", "text": "unable to perform that past relevant work, plaintiff was not disabled because plaintiff had the residual functional capacity to perform “a full range of light work and based upon his younger age, a limited ninth grade education and a history of semiskilled work with no transferable skills [pursuant to] Rule 202.19 in Appendix 2.” (Id. at 40.) The ALJ specifically relied upon the consultative examination by Dr. Skeene “supplemented by an assessment consistent with both sedentary and light work by A. Tolliver, a State Agency medical consultant.” (Id. at 37.) C. Duty to Develop the Record Plaintiff argues that the ALJ failed to develop the record. Specifically, plaintiff argues that the ALJ failed to obtain RFC assessments from NUMC treating physician and treating nurse practitioner, Minou Absy, M.D. and Wanda Evelyn (“treating sources”), respectively. For the reasons set forth below, after a thorough and careful examination of the administrative record in this case under the deferential standard applicable to Social Security appeals, the Court concludes that the ALJ failed to fully develop the record in accordance with the applicable regulations. Specifically, because the ALJ did not request any of the treating sources to opine on plaintiffs RFC, remand is required. It is well-established that the ALJ must affirmatively “develop the record in light of the essentially non-adversarial nature of a benefits proceeding” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996)). The ALJ’s regulatory obligation to develop the administrative record exists even when the claimant is represented by counsel or by a paralegal at the hearing. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999); Pratts, 94 F.3d at 37. The regulations provide that the lack of a statement from plaintiffs treating source regarding how plaintiffs impairments affect his or her ability to perform work-related activities will not render a report incomplete. 20 C.F.R. § 404.1513(b)(6). However, the regulations also provide that the Commissioner will first request such a statement. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996) (“[B]efore we make a determination that you are not disabled," }, { "docid": "17884146", "title": "", "text": "reference in the decision or the record as a whole that the ALJ requested RFC assessments from plaintiffs treating sources. The Commissioner contends that the medical records obtained were sufficient to make a disability determination. (See Comm’r’s Reply at 2 (citing Rosa v. Callahan, 168 F.3d at 79 n. 5 (“[W]here there are no obvious gaps in the administrative record, and where the ALJ already pos sesses a complete medical history the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.”))). However, as stated above, the Commissioner’s regulations explicitly state otherwise. Robins, 2011 WL 2446371, at *3 (“Although the regulation provides that the lack of such a statement will not render a report incomplete, it nevertheless promises that the Commissioner will request one.”). First, § 404.1512(d) provides “[w]e will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.” Id; see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). Second, “§ 404.1513(b)(6) states that a treating source’s medical report should include ‘[a] statement about what [the claimant] can still do despite [his or her] impairment(s).’ ” Robins, 2011 WL 2446371, at *3. Finally, “Social Security Ruling 96-5p confirms that the Commissioner interprets those regulations to mean that ‘[adjudicators are generally required to request that acceptable medical sources provide these statements with their medical reports.’ ” Id. (internal citations omitted). In other words, the Commissioner has an affirmative duty to request RFC assessments from plaintiffs treating sources despite what is otherwise a complete medical history. See id. at *2-4 (although the ALJ considered plaintiffs hospital and treatment records, which encompassed a five-year period, plaintiffs hearing testimony and the assessment of a consultative physician who examined plaintiff at the Commissioner’s request, the Court remanded because the ALJ did not attempt to obtain medical opinions from plaintiffs treating physicians); see also Clark v. Astrue, 08 Civ. 10389(LBS), 2010 WL 3036489, *6 n. 5 (S.D.N.Y. August 4, 2010) (“In this case, the administrative transcript does not contain any statements from any" }, { "docid": "19512807", "title": "", "text": "assessed the effect of plaintiff's depression on her RFC without the benefit of a medical opinion, and that her decision was therefore a lay opinion, based on an incomplete record. The Court concurs. \"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record. This duty exists even when the claimant is represented by counsel.\" Perez v. Chater , 77 F.3d 41, 47 (2d Cir. 1996). While it is not per se error for an ALJ to make an RFC determination without relying on a medical opinion, the ALJ's determination must be supported by substantial evidence of record. See Tankisi v. Commissioner , 521 Fed.Appx. 29 (2d Cir. 2013). Thus, where the record is not otherwise complete and fails to meaningfully address a claimant's functional physical and/or mental limitations, the ALJ's duty to further develop the record is triggered, and the ALJ's failure to satisfy that duty is reversible error. See Williams v. Colvin , 2016 U.S. Dist. LEXIS 51621 at *12-*13 (W.D.N.Y. 2016). Here, although the ALJ found that plaintiff's severe impairments included depression, the record was devoid of medical opinion evidence concerning the plaintiff's mental RFC. (Dkt. # 7 at 26). Instead, the ALJ stated that her findings concerning the effects of plaintiff's depression were based on selected statements from the treatment records of plaintiff's treating internist, Dr. Bruce MacKellar (in particular, three occasions on which plaintiff reported significant improvement with antidepressant medications), and the fact that plaintiff was referred to counseling by Dr. MacKellar, but \"stopped going.\" (Dkt. # 7 at 27) (\"[r]egarding the claimant[']s mental impairments, records indicate that the claimant has had complaints of depression and anxiety...However, the claimant indicated that her symptoms had improved on medication...The claimant was referred to counseling but stopped going because she felt like it was not doing anything for her...\"). While Dr. MacKellar's treatment notes and plaintiff's treatment history are undoubtedly relevant, neither provides any meaningful, objective indication of plaintiff's ability to perform the mental and/or physical demands of work. In any event, \"the ALJ's own interpretation of" }, { "docid": "17483632", "title": "", "text": "ability to function independently, appropriately, effectively, and on a sustained basis.” Id. § 12.00(C). b. Duty to Develop the Record “Social Security proceedings are inquisitorial rather than adversarial.” Sims v. Apfel, 530 U.S. 103, 110-11, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). Consequently, “the social security ALJ, unlike a judge in a trial, must on behalf of all claimants ... affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citation omitted). As part of this duty, the ALJ must “investigate the facts and develop the arguments both for and against granting benefits.” Sims, 530 U.S. at 111, 120 S.Ct. 2080. Specifically, under the applicable regulations, the ALJ is required to develop a claimant’s complete medical history. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citing 20 C.F.R. §§ 404.1512(d)-(f)). This responsibility “encompasses not only the duty to obtain a claimant’s medical records and reports but also the duty to question the claimant adequately about any subjective complaints and the impact of the claimant’s impairments on the claimant’s functional capacity.” Pena v. Astrue, No. 07-CV-11099 (GWG), 2008 WL 5111317, at *8 (S.D.N.Y. Dec. 3, 2008) (citations omitted). Whether the ALJ has met his duty to develop the record is a threshold question. Before reviewing whether the Commissioner’s final decision is supported by substantial evidence under 42 U.S.C. § 405(g), “the court must first be satisfied that the ALJ provided plaintiff with ‘a full hearing under the Secretary’s regulations’ and also fully and completely developed the administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782 (FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law.”) (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999)). The ALJ must develop the record" }, { "docid": "8418833", "title": "", "text": "hearing requires the ALJ “to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). This duty applies even in cases where the claimant is represented by counsel. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). When the claimant appears pro se, as was the case here, the ALJ has a heightened duty to develop the administrative record prior to making- a determination.\" See Cullinane v. Sec. of Dep’t of Health and Human Servs., 728 F.2d 137, 139 (2d Cir.1984) (remand for new hearing appropriate where ALJ failed to assist pro se litigant in securing all relevant medical testimony); see also Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990) (“[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well ... [the court has] a duty to make a searching investigation of the record to make certain that the claimant’s rights have been adequately protected.”) (citations and internal quotation marks omitted). This duty to develop the administrative record requires the ALJ to make “every reasonable effort to help [the claimant] get medical reports from [his or her] own medical sources.” Perez v. Chater, 77 F.3d at 47 (quoting 20 C.F.R. § 404.1512(d)). The ALJ is authorized to issue subpoenas to ensure not only the production of a claimant’s medical records, but also to obtain the testimony of necessary witnesses. See 42 U.S.C. § 405(d). The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant’s treating physician. This is because, in making a determination as to a claimant’s disability, the Commissioner must follow the “treating physician” regulations located at 20 C.F.R. § 404.1527. These regulations state as follows: If we find that a treating source’s opinion of the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling" }, { "docid": "19445731", "title": "", "text": "in direct sunlight. She can frequently reach, handle, finger, and feel. She is limited to goal-oriented work rather than production pace work. She should be permitted to wear sunglasses while working. (Dkt. # 8 at 18). When presented with this RFC, vocational expert Linda N. Vause testified that plaintiff could perform the positions of document preparer, information clerk, and addresser. (Dkt. # 8 at 21). Plaintiff argues that the ALJ erred when she assessed the effect of plaintiff's depression and anxiety on her RFC without the benefit of a medical opinion, and that her decision was therefore a lay opinion, based on an incomplete record. The Court concurs. \"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record. This duty exists even when the claimant is represented by counsel.\" Perez v. Chater , 77 F.3d 41, 47 (2d Cir. 1996). While it is not per se error for an ALJ to make an RFC determination without relying on a medical opinion, the ALJ's determination must be supported by substantial evidence of record. See Tankisi v. Commissioner , 521 Fed. Appx. 29 (2d Cir. 2013). Thus, where the record is not otherwise complete and fails to meaningfully address a claimant's functional physical and/or mental limitations, the ALJ's duty to further develop the record is triggered, and the ALJ's failure to satisfy that duty is reversible error. See Williams v. Colvin , 2016 U.S. Dist. LEXIS 51621 at *12-*13 (W.D.N.Y. 2016). Here, although the ALJ found that plaintiff's severe impairments included depression and anxiety, the record was devoid of medical opinion evidence concerning the plaintiff's mental RFC. Indeed, the ALJ did not cite to any evidence of record, or otherwise provide any factual basis to support, any of her findings concerning plaintiff's mental RFC, other than to summarize plaintiff's own testimony concerning her daily activities. (Dkt. # 8 at 17). Stated simply, the record lacks any useful medical evidence, and particularly an opinion by any treating or examining source, that addresses whether and to what extent plaintiff's mental impairments impact" }, { "docid": "9274877", "title": "", "text": "with a SVP of 2; and a light exertional demand.\" (R. 22-23.) The ALJ based this determination on VE Marracco's opinion that \"an individual with the claimant's age, education, wok experience, and residual functional capacity could work at the claimant's past relevant work as a Sales Attendant as it is generally performed in the national economy.\" (R. 23.) On the basis of her step four determination, the ALJ found that plaintiff had not been under a disability, as defined in the Act, from February 22, 2014, through the date of the Decision. (Id. ) V. ANALYSIS The Commissioner argues that she is entitled to judgment on the pleadings because (1) the ALJ fulfilled her duty to develop the record by, inter alia , making repeated requests for evidence from plaintiff's treating providers and obtaining opinion evidence from consultative examiner Dr. Mescon; (2) the ALJ's decision to discount plaintiff's credibility was supported by substantial evidence, as was her RFC determination; (3) the ALJ properly weighed the opinion evidence in the record; and (4) plaintiff's post-Decision evidence is neither \"new\" nor \"material.\" Def. Mem. (Dkt. No. 15) at 13-24. In response to the Commissioner's motion, plaintiff submitted a brief letter, dated October 29, 2018 (Dkt. No. 18), asserting that all of her impairments \"have gotten far worse,\" and that she no longer has \"no pain days,\" even when she takes her medication. To prevail on a motion for judgment on the pleadings, the Commissioner must establish that no material facts are in dispute and that judgment must be granted as a matter of law. Sellers v. M.C. Floor Crafters, Inc. , 842 F.2d 639, 642 (2d Cir. 1988) ; Claudio v. Commissioner of Social Security , 2017 WL 111741, at *1 (S.D.N.Y. Jan. 11, 2017). The law governing cases such as this is clear. The reviewing court \"may set aside an ALJ's decision only where it is based upon legal error or where its factual findings are not supported by substantial evidence.\" McClean v. Astrue , 650 F.Supp.2d 223, 226 (E.D.N.Y. 2009) (citing Balsamo v. Chater , 142 F.3d 75, 79 (2d" }, { "docid": "17884144", "title": "", "text": "accordance with the applicable regulations. Specifically, because the ALJ did not request any of the treating sources to opine on plaintiffs RFC, remand is required. It is well-established that the ALJ must affirmatively “develop the record in light of the essentially non-adversarial nature of a benefits proceeding” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996)). The ALJ’s regulatory obligation to develop the administrative record exists even when the claimant is represented by counsel or by a paralegal at the hearing. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999); Pratts, 94 F.3d at 37. The regulations provide that the lack of a statement from plaintiffs treating source regarding how plaintiffs impairments affect his or her ability to perform work-related activities will not render a report incomplete. 20 C.F.R. § 404.1513(b)(6). However, the regulations also provide that the Commissioner will first request such a statement. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996) (“[B]efore we make a determination that you are not disabled, we will develop your complete medical history ... [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.” (quoting 20 C.F.R. § 404.1512(d))); see also Robins v. Astrue, No. CV-10-3281 (FB), 2011 WL 2446371, at *3 (E.D.N.Y. June 15, 2011) (“Although the regulation provides that the lack of such a statement will not render a report incomplete, it nevertheless promises that the Commissioner will request one.”). Here, as noted above, the Court conducted a thorough and careful review of the administrative record. The record contains over one-hundred pages of well documented medical source documents from NUMC and its HIV Clinic over a three-year period from September 2006 until September 2009 (AR at 153-68, 182-270), exceeding the regulations’ requirements for a complete medical history under 20 C.F.R. § 416.912(d). In addition, the record includes a report from consultative examiner, Dr. Skeene, disability analyst A. Tolliver, and plaintiffs detailed testimony at the hearing, regarding his functional capacity. However, there is no" }, { "docid": "8418832", "title": "", "text": "Cir.1999) (reviewing court precluded from deferring to the Commissioner’s decision where the Commissioner has failed to apply the correct legal standard in reaching a determination). Accordingly, the initial task of a court reviewing the denial of Social Security disability benefits is to “satisfy [itself] that the claimant has had a full hearing under the [Commissioner’s] regulations and in accordance with the beneficent purposes of the [Social Security] Act.” Echevarria v. Sec. of Health and Human Servs., 685 F.2d 751, 755 (2d Cir.1982) (citation and internal quotation marks omitted). Where the reviewing court determines that an error of law has deprived the claimant of a full and fair hearing, the court should reverse the Commissioner’s decision and remand the matter for a new hearing. See Havas v. Bowen, 804 F.2d 783, 787 (2d Cir.1986); Aubeuf v. Schweiker, 649 F.2d 107, 116 (2d Cir.1981). C. Duty to Develop Record An ALJ has an affirmative duty to develop the administrative record in a disability benefits case. Tejada, 167 F.3d at 774. The non-adversarial nature of a Social Security hearing requires the ALJ “to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). This duty applies even in cases where the claimant is represented by counsel. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996). When the claimant appears pro se, as was the case here, the ALJ has a heightened duty to develop the administrative record prior to making- a determination.\" See Cullinane v. Sec. of Dep’t of Health and Human Servs., 728 F.2d 137, 139 (2d Cir.1984) (remand for new hearing appropriate where ALJ failed to assist pro se litigant in securing all relevant medical testimony); see also Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990) (“[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well ... [the court has] a duty to make a searching investigation of the record to make certain that the claimant’s rights have been adequately protected.”) (citations and internal quotation marks" } ]

[ { "docid": "16470489", "title": "", "text": "existence, and that though they had produced evidence of all the sales made of licenses for the use of the patent on steamboats during its existence, the fee in no case exceeded the latter sum. Notwithstanding this testimony, which seems to have been uncontradicted, the verdict of the jury and the judgment of the court was for $11,833, with interest from the date of the commencement of the suit. The defendants in various forms prayed the court to instruct the jury that the measure of damages was the established rate for the license to use their invention, as ascertained by the sales made by plaintiffs of such license to others. If this was the true rule of estimating the damage the bill of exceptions shows that a sufficient number of such licenses, and the prices atwhieh they were granted, were in evidence to enable the jury to apply the principle to the ease before them. And we are of opinion that this was the sound rule, and that in refusing the prayers for instruction based on it, as well as in admitting evidence of the saving of fuel and its value as affecting the amount of the verdict, the court below was in error. And the same error is to be found in the charge of the court to the jury on that subject. In the case of Seymour v. McCormick, this court, on full consideration, and without dissent, laid down the proposition that in suits at law for infringement of patents, where the sale of lieeuses by the patentee had been sufficient to establish a price for such licenses, that price should be taken as the measure of his damages against the infringer. The rule thus declared has remained the established criterion of damages in cases to which it was applicable ever since. “In cases where there is no established patent or license fee in the case,” says the court in the Suffolk Company v. Hayden, “ or even an approximation to it, general evidence must necessarily be resorted to.” In the case of Seymour v. McCormick, a charge" } ]

[ { "docid": "7973727", "title": "", "text": "S. 318, 18 L. Ed. 76. There “no sales had been made of the patent right by the plaintiff or of licenses for the use of it, so as to establish a patent or license fee as a criterion by which to ascertain the measure of damages.” The court below admitted evidence as to the uses and advantages of this improvement over previous methods of cleaning cotton. In affirming this action Justice Nelson said: “There being, no established patent or license fee in the case, ’in order to get at a fair measure of damages, or even an approximation to it, general evidence must necessarily be resorted to. And what evidence could be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that have been used for working out similar results ? With a knowledge of these benefits to the persons who have used the invention, and the extent of the use by the infringer, a jury will be in possession of material and controlling facts that may enable them, in the exercise of a sound judgment, to ascertain the damages, or, in other words, the loss to the patentee or owner by the piracy, instead of the purchase, of the use of the invention.” The statute of July 8, 1870 (Rev. St. § 4919 [U. S. Comp. St. 1901, p. 3394]), made no change in the rule of damages in actions at law thus established. In Birdsall v. Coolidge, 93 U. S. 69, 23 L. Ed. 802, where Suffolk Co. v. Hayden, supra, was cited with approval, Justice Clifford, referring to the act of 1870 says: ■“Where the suit is at law, the measure of damages remains unchanged to the present time; the rule still being that the verdict of the jury must be for the actual damages sustained by the plaintiff.” In Root v. Railway Co., 106 U. S. 198, 26 L. Ed. 975, Justice Matthews made an exhaustive review of the patent statutes and decisions and cited Suffolk Co. v. Hayden as deciding that “in case" }, { "docid": "22045406", "title": "", "text": "the plaintiff pursued a course of granting licenses to others to- deal in articles embodying the invention, the established royalty could have been proved as indicative of the value of what was taken, and therefore as affording a basis for measuring the damages. Philp v. Nock, 17 Wall. 460, 462; Birdsall v. Coolidge, 93 U. S. 64, 70; Clark v. Wooster, 119 U. S. 322, 326; Tilghman v. Proctor, 125 U. S. 136, 143. But, as the patent had been kept a close monopoly, there was no established royalty. In that situation it was permissible to show the value by proving what would have been a reasonable royalty, considering the nature of the invention, its utility and. advantages, and the extent of the use involved. Net improbably such proof was more difficult to produce, but it was quite as admissible as that of an established royalty. In Suffolk Co. v. Hayden, 3 Wall. 315, 320, where a like situation was presented, this court said that “in order to get at a fair measure of damages, or even an approximation of it,, general evidence must necessarily be resorted to.” See also Packet Co. v. Sickles, 19 Wall. 611, 617; Root v. Railway Co., 105 U. S. 189, 198. And in many cases in the other Federal courts the damages have been assessed upon proof of a reasonable royalty. The practice is illustrated by the following extract from the opinion in Hunt v. Cassiday, 12 C. C. A. 316, 318, 64 Fed. Rep. 585, 587: “The plaintiff was clearly entitled to damages for the infringement. If there had been an established royalty, the jury could have taken that sum as the measure of damages. In the absence of such royalty, and in the absence of proof of lost sales or injury by,competition, the only measure of damages was such sum as, under all the circumstances, would have been a reasonable royalty for the defendant to have paid. This amount it was the province of the jury to determine. In so doing, they did not make a contract for the parties, but found" }, { "docid": "7973729", "title": "", "text": "where there is no established patent or license fee in the case, or even an approximation to it, general evidence must necessarily be resorted to”; and in Tilghman v. Proctor, 125 U. S. 143, 8 Sup. Ct. 894, 31 L. Ed. 66.4, it was again cited, in a full review of the patent cases bearing on damages, for the proposition that license fees and roj^-alties are generally, “though not always, taken as the measure of damages.” It will thus be seen that Suffolk Co. v. Hayden has been approvingly cited and considered as authority for the principle, therein enunciated, that, in the absence of license fee or royalty, other proof can in an action at law be resorted to, to show the damage done to the owner of the patent. The law thus announced is conclusive of the case before us, unless Suffolk Co. v. Hayden was overruled by the Supreme Court in Coupe v. Royer, 155 U. S. 567, 15 Sup. Ct. 199, 39 L. Ed. 263. AssuredR the case is not overruled by name, and the question there involved and decided does not require a reversal by implication. In that case, which was an action at law, the court below had held “that whatever value has been received by the defendants through the use of this invention, so much has beén taken from the plaintiffs, and they are entitled to have it restored to them.” The Supreme Court, however, after stating the rule in equity was that the gains and profits of the infringer could be recovered, says: “At law the plaintiff is entitled to recover, as damages, compensation for the pecuniary loss he has suffered from infringement, without regard to the question whether the defendant has gained or lost by his unlawful acts; the measure of recovery in such cases being, not what the defendant has gained, but what plaintiff has lost.” It was accordingly said: “It is evident, therefore, that the learned judge applied the wrong standard in instructing the jury that they should find what the defendants might be shown to have gained from the" }, { "docid": "23669041", "title": "", "text": "without qualification, where the patented improvement has been used only to a limited extent and for a short time, but that in such a case the jury should find less than the amount of the license fee; and it is admitted in several cases that the circumstances may be such that the finding should be larger than the royalty.” In Root v. Railway Co., 105 U. S. 189, 196 (26 L. Ed. 975), Mr. Justice Matthews quotes with apparent approval from Suffolk v, Hayden: “Where there is no established patent or license foe in the case, or even an approximation to it, general evidence must necessarily he resorted to. * * * “And what evidence * * * could be more appropriate and pertinent than that of the utility and advantages of the invention?” The principle was again distinctly recognized by Mr. Justice Brown, when he said, in Sessions v. Romadka, 145 U. S. 29, 45, 12 Sup. Ct. 799, 803 (36 L. Ed. 609): “This court has, however, repeatedly held that, in estimating damages in the absence of a royalty, it is proper to consider the savings of the defendant in the use of the patented device;” although this comment loses some of its force, because the case before the court was an accounting for profits. In the lower federal courts, also, the principle of Suffolk v. Hayden has been repeatedly applied. In Judson v. Bradford, Fed. Cas. No. 7,564, what evidence was given affecting the amount of damages does not appear from the report. Mr. Justice Clifford said: “Frequent cases arise where proof of an established royalty furnishes a pretty safe guide for the instructions of the court and the finding of the jury, but cases also arise where it cannot be applied without qualification, as where a patented improvement has been used only to a limited extent and for a very short period. Proof of a single license was given in this case, but it cannot, in view of the circumstances, be regarded as affording the only measure ot compensation to which the plaintiff is entitled. Where" }, { "docid": "22045407", "title": "", "text": "or even an approximation of it,, general evidence must necessarily be resorted to.” See also Packet Co. v. Sickles, 19 Wall. 611, 617; Root v. Railway Co., 105 U. S. 189, 198. And in many cases in the other Federal courts the damages have been assessed upon proof of a reasonable royalty. The practice is illustrated by the following extract from the opinion in Hunt v. Cassiday, 12 C. C. A. 316, 318, 64 Fed. Rep. 585, 587: “The plaintiff was clearly entitled to damages for the infringement. If there had been an established royalty, the jury could have taken that sum as the measure of damages. In the absence of such royalty, and in the absence of proof of lost sales or injury by,competition, the only measure of damages was such sum as, under all the circumstances, would have been a reasonable royalty for the defendant to have paid. This amount it was the province of the jury to determine. In so doing, they did not make a contract for the parties, but found a measure of damages.” True, some courts have regarded Coupe v. Royer, 155 U. S. 565, as impliedly holding that this practice was not permissible, but the decision does not admit of such an interpretation. In that case — an action at law — there was no proof of what would have been a reasonable royalty but only of what the defendant had made or might have made out of the infringement; and all. that the court held was (a) that the damages were not to be measured by what the defendant had gained or might have gained but by what the plaintiff had lost, and (b) that, as the evidence disclosed (p. 583) “no license fee, no impairment of the plaintiff's market, in short, no damages of any kind,” the verdict could not exceed a nominal sum. In Cassidy v. Hunt, 75 Fed. Rep. 1012, where the scope of that decision was carefully considered by one of the Circuit Judges for the Ninth Circuit, the conclusion was reached that it did not militate against" }, { "docid": "9823378", "title": "", "text": "as this. The estimate of the patentee placing it at $100 is, it is true, an expression of his opinion; but it is an opinion based to some extent upon figures and estimates. He evidently disclosed all the information he possessed upon (he subject, — the cost of manu facture, the Sidling price, so far as he had sold, the profit, and Ms estimate of the proportion of the profit that should be attributable io the infringed invention, in this class of patents there are necessarily no data from which the value of a royalty can be calculated wish mathematical certainty. The damages itere, like damages in many oilier classes of cases, are calculable upon such evidence as it is in the nature of the case possible to produce. The plaintiff was clearly entitled to damages for the infringement. If there had been an established royalty, the jury could have taken that sum as the measure of damages. In the absence of such royalty, and in the absence of proof of lost sales or injury by competition, the only measure of damages was such sum as' under all the dmimstaiic.es, would have been a reasonable royalty for the defendant to have paid. This amount it was the province of the jury to determine. In so doing, they did not make a contract for the parties, but found a measure of damages. McKeever v. U. S., 14 Ct. Cl. 414; Ross v. Railway Co., 45 Fed. 424: Royer v. Coupe, 29 Fed. 371; Cary v. Manufacturing Co., 37 Fed. 654. We find no error, and the judgment of the court below is affirmed, with costs to the defendant in error." }, { "docid": "22045405", "title": "", "text": "sold by the defendants was shown, there was no proof that the plaintiff thereby lost the sale of a like number of drills or of any definite or even approximate number. During the period of infringement several other manufacturers were selling drills in large numbers in the same localities in direct competition with the plaintiff’s driH, and under the evidence it could not be said that, if the sales in question had not been made, the defendants’ customers would have bought from the plaintiff rather than from the other manufacturers. Besides, it did not satisfactorily appear that the plaintiff possessed the means and facilities requisite for supplying the demands of its own customers and of those who purchased the infringing drills. There was therefore no adequate basis for an assessment of damages upon the ground of lost sales. As the exclusive right conferred by the patent was property and the infringement was a tortious taking of a part of that property, the normal measure of damages was the value of what was taken. So, had the plaintiff pursued a course of granting licenses to others to- deal in articles embodying the invention, the established royalty could have been proved as indicative of the value of what was taken, and therefore as affording a basis for measuring the damages. Philp v. Nock, 17 Wall. 460, 462; Birdsall v. Coolidge, 93 U. S. 64, 70; Clark v. Wooster, 119 U. S. 322, 326; Tilghman v. Proctor, 125 U. S. 136, 143. But, as the patent had been kept a close monopoly, there was no established royalty. In that situation it was permissible to show the value by proving what would have been a reasonable royalty, considering the nature of the invention, its utility and. advantages, and the extent of the use involved. Net improbably such proof was more difficult to produce, but it was quite as admissible as that of an established royalty. In Suffolk Co. v. Hayden, 3 Wall. 315, 320, where a like situation was presented, this court said that “in order to get at a fair measure of damages," }, { "docid": "9823377", "title": "", "text": "that the patentee icslifiod that he had endeavored to .fix the royalty at $100; that he had in some instances collected that amount as royalty; Unit he had sold his driers at $250, and that they had cost him S!)2; that his profits were -Si58, of which lie estimated $58 to be the profits oí die nupatented portions, leaving $100 as profit on the invention which was «lid to be infringed. He further testified that, in his judgment, that sum was a, fair and reasonable royally. There was evidence that the established royalty on the prior machine of Aiden, a much more expensive drier, made* nnder a patent containing chums similar to those of the plaintiffs patent, was $1,000, while its cost was but $250; and íhav the lifting device in the Aiden patent', was made at an expense of $75, while that, of: the patent in controversy cost bur, $17. If: is difficult to conceive how there could have been more direct proof concerning the amount of a reasonable royalty in a ease such as this. The estimate of the patentee placing it at $100 is, it is true, an expression of his opinion; but it is an opinion based to some extent upon figures and estimates. He evidently disclosed all the information he possessed upon (he subject, — the cost of manu facture, the Sidling price, so far as he had sold, the profit, and Ms estimate of the proportion of the profit that should be attributable io the infringed invention, in this class of patents there are necessarily no data from which the value of a royalty can be calculated wish mathematical certainty. The damages itere, like damages in many oilier classes of cases, are calculable upon such evidence as it is in the nature of the case possible to produce. The plaintiff was clearly entitled to damages for the infringement. If there had been an established royalty, the jury could have taken that sum as the measure of damages. In the absence of such royalty, and in the absence of proof of lost sales or injury" }, { "docid": "14389748", "title": "", "text": "of experts. The court remarked that where an established royalty could not be shown, it would be permissible to show value by proving what would have been a reasonable royalty considering the nature of the invention, its utility, advantages and the extent of the iise involved. But in the absence of satisfactory evidence of sales of licenses or of royalties established, proof of profits may be resorted to as one of the elements from which damages may be ascertained, although in an action like this, profits which the other party might have made are not the primary or controlling measure of damages. Burdell v. Denig, 92 U.S. 716, 720, 23 L.Ed. 764; United States Frumentum Co. v. Lauhoff, 6 Cir., 216 F. 610; Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689 699, 53 S.Ct. 736, 7 L.Ed. 1449, 1457, 88 A.L.R. 496, where United States Frumentum Co. was cited with approval, Mr. Justice Cardozo writing “The law will make the best appraisal that it can, summoning to its service whatever aids it can” 289 U.S. at page 697, 53 S.Ct. at page 739, 7 L.Ed. 1449, 88 A.L.R. 496. The fact that the interrogatories interposed under this head may call for costs and income relating to all two film cameras, whether they include the patented film registering means or not, would not make the interrogatories objectionable. The courts heretofore have had no difficulty in separating an award of damages where the financial success of the article using that portion of the patent claimed to have been infringed, has been also based upon other features. Dowagiac Manufacturing Co. v. Minnesota Moline Plough Co., supra, Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 60 S.Ct. 681, 84 L„ Ed. 825. In view of these decisions the objections to interrogatories 17, and 42 to-53 inclusive should be overruled. Group 3. The interrogatories-objected to under this head may be illustrated by the 18th, which asks: (18) State whether or not the defendant during the said period made, used or sold any cameras for making negative films for color cinematography which used" }, { "docid": "23669048", "title": "", "text": "which fair compensation to plaintiff was to be determined. The Circuit Court of Appeals of the Fourth Circuit said: “The rule now well established relative to the question of damages in casos of this kind was properly given by the court to the jury.” The case is no less authority upon the proposition it announces because the jury, under this instruction, had found only nominal damages. In Hunt v. Cassiday, 64 Fed. 585, 587, 12 C. C. A. 316, 318, and after it had been decided upon a previous appeal that the proof did not show an established license fee, it was said, by the Circuit Court of Appeals for the Ninth Circuit; “The plaintiff was clearly entitled to damages for the infringement. If there had been an established royalty, the jury could have taken that sum as the measure of damages. Tn the absence of such royalty, and in the absence of proof of lost sales or injury by competition, tbe only measure of damages was such sum as, under all the circumstances, would have been a reasonable royalty for the defendant to have paid. This amount it was the province of the jury to determine. In so doing, they did not make a contract for the parties, but found a measure of damages.” Recognizing this as the established rule, Mr. Walker, in his third edition Q.895, § 563, p. 432), said; “Where damages cannot be assessed on the basis of a royalty nor on that of lost sales nor on that of reduced profits, the proper method of assessing them is to ascertain what would have been a reasonable royalty Cor the in-fringer to have paid. In determining this point where the infringement consisted of making and selling, or in selling after a purchase, the profits of the defendant may be considered; and where the infringment consisted in using, tile cost and the utility of the patented process or thing as compared with the Other process or things Known at the time of the infringement and capable of doing similar work may be the leading guides. But those" }, { "docid": "23669051", "title": "", "text": "175, Judge Buffington, speaking for that court, pointed out that the proposition that sometimes “general evidence must be resorted to” had been approved in Root v. Railway; and the Circuit Court of Appeals held that it was error in the court below to direct a verdict for nominal damages in the absence of any testimony tending to show an established royalty or impaired sales and in the face of testimony offered to prove the utility and advantages of the patented device and its appropriation and use by several railroads. In Bemis Co. v. Brill Co., 200 Fed. 749, 759, 119 C. C. A. 229, 239, the same Circuit Court of Appeals, speaking again by Judge Buffing-ton, expressly approved the finding of the referee fixing a certain sum as the “reasonable royalty or license fee which plaintiff should have received from the defendant for the latter’s unlawful úse of the plaintiff’s invention without compensation”; and the master had fixed this sum (alternatively), upon the theory that there was no sufficient evidence to show either an established license fee or that the plaintiff had lost any sales. The right of a plaintiff to recover in a suitable case this “reasonable royalty” would probably be unquestioned, except for the decision of the Supreme Court in Coupe v. Royer, 155 U. S. 565, 583, 15 Sup. Ct. 199, 207 (39 L. Ed. 263) and its supposed overruling effect upon Suffolk v. Hayden. In Coupe v. Royer, the patent involved was upon a machine for converting hides into leather. Upon the trial, the pat-entee had established his patent and its infringement, but had' put in no evidence whatever supporting an assessment of damages, except that he proved the amount of the defendant’s profits or savings. The trial court instructed the jury that these savings were the measure of plaintiff’s loss. The Supreme Court held that this was error'; that defendant’s profits could be recovered in equity but not, as profits, at law; and that the defendant’s profits do not, ipso facto, constitute plaintiff’s damages. In the opinion by Mr. Justice Shiras, Suffolk v. Hayden is" }, { "docid": "23669038", "title": "", "text": "said: “This question of damages, under the rule given in the statute, is always attended with difficulty and embarrassment both to the court and jury. There being no established patent or license fee in the case, in order to get at a fair measure of damages, or even an approximation to it, general evidence must necessarily be resorted to. And what evidence could be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that had been used for working out similar results? With a knowledge of these benefits to the persons who have used the invention, and the extent of the use by the infringer, a jury will be in possession of material and controlling facts that may enable them, in the exercise of a sound judgment, to ascertain the damages, or, in other words, the loss to the patentee or owner, by the piracy, instead of the purchase of the use of the invention.” The principle of Suffolk v. Hayden was frequently applied by the Supreme Court. In Philp v. Nock, 84 U S. (17 Wall.) 460, 462 (21 L. Ed. 679), Mr. Justice S'wayne said: “The measure of damages to be recovered against infringers prescribed by the act of 1836 as well as by the act of 1870, is ‘the actual damages sustained by the plaintiff.’ Where the ifiaintiff has sought his profit in the form of a royalty paid by his licensees, and there are no peculiar circumstances in the case, the amount to be recovered will be regulated by that standard. If that test cannot be applied, he will be entitled to an amount which will compensate him for the injury to which he has been subjected by the piracy. In arriving- at their conclusion, the profit made by the defendant and that lost by the plaintiff are among the elements which the jury may consider.” In Burdell v. Denig, 92 U. S. 716, 720 (23 L. Ed. 764), Mr. Justice Miller, after saying that in an equitable accounting those profits which defendant has actually" }, { "docid": "15061190", "title": "", "text": "Company and who was a witness for the defendant, testified : “I believe it is generally agreed by the scientific world that, when Dr. De Forest inserted the grid, he gave the world radio.” With respect to the extent of the infringement, it appears that the Radio Audion Company manufactured at least 36,330 infringing tubes. From an application to these facts of the principles hereinbefore ascertained and stated, it follows, I think, that plaintiff’s property rights were of great value; that those rights were wrongfully and extensively converted by the Radio Audion Company to its own use; that such an (extensive wrongful conversion by the Radio-Audion Company to its own use of such valr uable property of the plaintiff resulted in substantial, not nominal, damage to the plaintiff; and that, since there was no established royalty, and since the plaintiff has not lost any sales or suffered- any lessened profits by reason of the infringement, the-only standard of measurement of damages-at all available to the’ plaintiff is that of' reasonable royalty. But that standard is-also unavailable to the plaintiff unless the evidence in the reeord is sufficient in character and amount to disclose what sum. would constitute a reasonable royalty upon a tube embodying the inventions of the patents-in suit. Does the evidence reveal' what sum would be a reasonable royalty? I think it does. In Suffolk Mfg. Co. v. Hayden, 3 Wall. (70 U. S.) 317, 18 L, Ed. 76, “no sales-had been made of the patent xi^ht by the plaintiff, or of licenses for the use of it, so as to establish a patent or license fee as a criterion by which to ascertain the measure of damages.” The court below admitted evidence-of thé utility and advantage of this improvement over previous methods. In confirming this action, Mr. Justice Nelson said that in. such cases general evidence must necessarily - be resorted to, and added: “ * * * And what evidence could be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that had been used" }, { "docid": "23669050", "title": "", "text": "profits and advantages do not alone show what a reasonable royalty would have been, because it would not be reasonable for a royalty to be as much as the entire benefit derived from the business by a licensee. Therefore an instruction to the jury that the plaintiff was entitled to recover whatever value the defendant had received from the use of the plaintiff’s invention was an error.” In Robinson on Patents, § 1061; Note 1, and in the course of an introduction to an exhaustive and careful analysis of the cases on damages and profits, the learned author says: “Profits were, until recently, the only measure of damages in equity. They have always been admissible in evidence upon the question of the amount of damages at law.” The principle thus established by Suffolk v. Hayden, arid generally recognized by the courts and text-books, has been more recently affirmed and applied by the Circuit Court of Appeals for the Third Circuit. In McCune v. B. & O. Ry. Co., 154 Fed. 63, 83 C. C. A. 175, Judge Buffington, speaking for that court, pointed out that the proposition that sometimes “general evidence must be resorted to” had been approved in Root v. Railway; and the Circuit Court of Appeals held that it was error in the court below to direct a verdict for nominal damages in the absence of any testimony tending to show an established royalty or impaired sales and in the face of testimony offered to prove the utility and advantages of the patented device and its appropriation and use by several railroads. In Bemis Co. v. Brill Co., 200 Fed. 749, 759, 119 C. C. A. 229, 239, the same Circuit Court of Appeals, speaking again by Judge Buffing-ton, expressly approved the finding of the referee fixing a certain sum as the “reasonable royalty or license fee which plaintiff should have received from the defendant for the latter’s unlawful úse of the plaintiff’s invention without compensation”; and the master had fixed this sum (alternatively), upon the theory that there was no sufficient evidence to show either an established" }, { "docid": "23669040", "title": "", "text": "made, and in a suit at law, an established royalty, “constitute the primary and true criterion of damages,” nevertheless adds: “No doubt, in the absence of satisfactory evidence of either class in the form to which it is most appropriate, the other may be resorted to as one of the elements from which the damages or the compensation may be ascertained.” Birdsall v. Coolidge, 93 U. S. 64, 70 (23 L. Ed. 802), illustrates that the “established royalty” measure is not conclusive. Mr. Justice Clifford said: “Still, it is obvious that there cannot be any one rule of damages prescribed which will apply in all cases, even where it is conceded that the finding must be limited to actual damages. Frequent cases arise where proof of an established royalty furnishes a pretty safe guide both for the instructions of the court and the finding of the jury. Reported cases of undoubted authority- may be referred to which support that proposition; and yet it is believed to be good law, that the rule cannot be applied without qualification, where the patented improvement has been used only to a limited extent and for a short time, but that in such a case the jury should find less than the amount of the license fee; and it is admitted in several cases that the circumstances may be such that the finding should be larger than the royalty.” In Root v. Railway Co., 105 U. S. 189, 196 (26 L. Ed. 975), Mr. Justice Matthews quotes with apparent approval from Suffolk v, Hayden: “Where there is no established patent or license foe in the case, or even an approximation to it, general evidence must necessarily he resorted to. * * * “And what evidence * * * could be more appropriate and pertinent than that of the utility and advantages of the invention?” The principle was again distinctly recognized by Mr. Justice Brown, when he said, in Sessions v. Romadka, 145 U. S. 29, 45, 12 Sup. Ct. 799, 803 (36 L. Ed. 609): “This court has, however, repeatedly held that, in estimating damages" }, { "docid": "7973728", "title": "", "text": "controlling facts that may enable them, in the exercise of a sound judgment, to ascertain the damages, or, in other words, the loss to the patentee or owner by the piracy, instead of the purchase, of the use of the invention.” The statute of July 8, 1870 (Rev. St. § 4919 [U. S. Comp. St. 1901, p. 3394]), made no change in the rule of damages in actions at law thus established. In Birdsall v. Coolidge, 93 U. S. 69, 23 L. Ed. 802, where Suffolk Co. v. Hayden, supra, was cited with approval, Justice Clifford, referring to the act of 1870 says: ■“Where the suit is at law, the measure of damages remains unchanged to the present time; the rule still being that the verdict of the jury must be for the actual damages sustained by the plaintiff.” In Root v. Railway Co., 106 U. S. 198, 26 L. Ed. 975, Justice Matthews made an exhaustive review of the patent statutes and decisions and cited Suffolk Co. v. Hayden as deciding that “in case where there is no established patent or license fee in the case, or even an approximation to it, general evidence must necessarily be resorted to”; and in Tilghman v. Proctor, 125 U. S. 143, 8 Sup. Ct. 894, 31 L. Ed. 66.4, it was again cited, in a full review of the patent cases bearing on damages, for the proposition that license fees and roj^-alties are generally, “though not always, taken as the measure of damages.” It will thus be seen that Suffolk Co. v. Hayden has been approvingly cited and considered as authority for the principle, therein enunciated, that, in the absence of license fee or royalty, other proof can in an action at law be resorted to, to show the damage done to the owner of the patent. The law thus announced is conclusive of the case before us, unless Suffolk Co. v. Hayden was overruled by the Supreme Court in Coupe v. Royer, 155 U. S. 567, 15 Sup. Ct. 199, 39 L. Ed. 263. AssuredR the case is not overruled by" }, { "docid": "23578913", "title": "", "text": ". . upon a judgment being rendered in any case for an infringement the complainant shall be entitled to recover general damages which shall be due compensation for making, using, or selling the invention, not less than a reasonable royalty therefor, together with such costs, and interest, as may be fixed by the court. . . .” (Italics supplied.) It. S. § 4921, as amended August 1, 1946, 60 Stat. 778, 35 U. S. C. A. §70 (Supp. 1946), relating to the power of courts to grant injunctions and estimate damages. The most recent and outstanding example of its recognition is in Hartford-Empire Co. v. United States, 323 U. S. 386, 413-417. In patent accounting suits, where the profits or damages cannot be ascertained and no standard of comparison is available, the court may allow a reasonable royalty. “But, as the patent had been kept a close monopoly, there was no established royalty. In that situation it was permissible to show the value by proving what would have been a reasonable royalty, considering the nature of the invention, its utility and advantages, and the extent of the use involved. Not improbably such proof was more difficult to produce, but it was quite as admissible as that of an established royalty.” Dowagiac Mfg. Co. v. Minnesota Plow Co., 235 U. S. 641, 648. See also, Sheldon v. Metro-Goldwyn Corp., 309 U. S. 390, 404; Suffolk Co. v. Hayden, 3 Wall. 315, 320; 3 Walker on Patents § 833 (Deller’s ed. 1937) (Id. 1945 pocket supp.); 56 Yale L. J. 77. United States v. Owens-Illinois Glass Co., CCH Trade Beg. Serv. ¶ 57,498 (D. C. N. D. Calif., 1946); United States v. American Air Filter Co., CCH Trade Reg. Serv. ¶ 57,492 (D. C. W. D. Ky. 1946); United States v. Libbey-Owens-Ford Glass Co., CCH Trade Reg. Serv. ¶ 57,489 (D. C. N. D. Ohio 1946); United States v. Diamond Match Co., CCH Trade Reg. Serv. ¶ 57,456 (D. C. S. D. N. Y. 1946); United States v. General Elec. Co., CCH Trade Reg. Serv. ¶ 57,448 (D. C. N. J. 1946);" }, { "docid": "23669047", "title": "", "text": "below had said to the jury that there was no established royalty so as to fix the “primary and true criterion” of damage and value, and had charged: “If you find in favor of the plaintiffs, you should consider the utility and advantage to the defendant of the use of the patented device, as compared to any other means of obtaining similar results which were open to the defendant to use, and you may consider the cost of using one as compared with the cost and savings to the defendant of using the other; and from these data, if proven to you, you should ascertain, in the exercise of a sound judgment, what would be a fair compensation to the plaintiffs for the damage which they have sustained by reason of the defendant having infringed, instead of having purchased the right to use the invention.” It will be noticed that the defendant’s savings or profits were not to be taken as the measure of plaintiff’s damages, but only as a part of the data from which fair compensation to plaintiff was to be determined. The Circuit Court of Appeals of the Fourth Circuit said: “The rule now well established relative to the question of damages in casos of this kind was properly given by the court to the jury.” The case is no less authority upon the proposition it announces because the jury, under this instruction, had found only nominal damages. In Hunt v. Cassiday, 64 Fed. 585, 587, 12 C. C. A. 316, 318, and after it had been decided upon a previous appeal that the proof did not show an established license fee, it was said, by the Circuit Court of Appeals for the Ninth Circuit; “The plaintiff was clearly entitled to damages for the infringement. If there had been an established royalty, the jury could have taken that sum as the measure of damages. Tn the absence of such royalty, and in the absence of proof of lost sales or injury by competition, tbe only measure of damages was such sum as, under all the circumstances, would" }, { "docid": "15061191", "title": "", "text": "unavailable to the plaintiff unless the evidence in the reeord is sufficient in character and amount to disclose what sum. would constitute a reasonable royalty upon a tube embodying the inventions of the patents-in suit. Does the evidence reveal' what sum would be a reasonable royalty? I think it does. In Suffolk Mfg. Co. v. Hayden, 3 Wall. (70 U. S.) 317, 18 L, Ed. 76, “no sales-had been made of the patent xi^ht by the plaintiff, or of licenses for the use of it, so as to establish a patent or license fee as a criterion by which to ascertain the measure of damages.” The court below admitted evidence-of thé utility and advantage of this improvement over previous methods. In confirming this action, Mr. Justice Nelson said that in. such cases general evidence must necessarily - be resorted to, and added: “ * * * And what evidence could be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that had been used for working out similar results? With a knowledge of these benefits to the persons who have used the invention, and the extent of the use by the infringer, a jury will be in possession of material and controlling facts that may enable them, in the exercise of a sound judgment, to ascertain the damages, or, in other words, the loss to the patentee or owner, by the piracy, instead of the purchase of the úse of the invention.” Suffolk Mfg. Co. v. Hayden was relied upon and followed by the Court of Appeals for this circuit in McCune v. Baltimore & O. R. Co. 154 F. 63, 64, 83 C. C. A. 175. In the Dowagiae Case, in which there was no established royalty, the court said: “In that situation it was permissible to show the value by proving what would have been a reasonable royalty, considering the nature of the invention, its utility and advantages, and the extent of the use involved.” The nature of the inventions of the patents here in suit, their" }, { "docid": "7973726", "title": "", "text": "BUFFINGTON, Circuit Judge. In the court below James B. Mc-Cune, the plaintiff in error, brought an action at law against the Baltimore & Ohio Railroad Company to recover damages for infringement of a patent granted to him May 18, 1886, for a locomotive ashpan. The patent had expired before suit brought. McCune had never granted a license, established a royalty, or manufactured and sold the patented device. There was testimony tending to prove the defendant infringed the patent. Thereupon the plaintiff offered to prove the utility and advantages of his patented device, that it had been appropriated and used by a number of other railroads, and that this use, being without his consent, prevented the establishment of a market value therefor. This offer the court rejected, and directed a verdict for the plaintiff for nominal damages. Whereupon the plaintiff sued out this writ and assigned for error the rejection of this testimony. It is clear to us the rejected testimony was in substance the same as that admitted in Suffolk Co. v. Hayden, 70 U. S. 318, 18 L. Ed. 76. There “no sales had been made of the patent right by the plaintiff or of licenses for the use of it, so as to establish a patent or license fee as a criterion by which to ascertain the measure of damages.” The court below admitted evidence as to the uses and advantages of this improvement over previous methods of cleaning cotton. In affirming this action Justice Nelson said: “There being, no established patent or license fee in the case, ’in order to get at a fair measure of damages, or even an approximation to it, general evidence must necessarily be resorted to. And what evidence could be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that have been used for working out similar results ? With a knowledge of these benefits to the persons who have used the invention, and the extent of the use by the infringer, a jury will be in possession of material and" } ]

[ { "docid": "15413547", "title": "", "text": "identical phrasing are, alone, probably not enough to support a claim of infringement. However, to constitute an infringement of copyright, the infringing composition need not be identical with the infringed; paraphrasing is an infringement. Warner Bros. Pictures v. C. B. S., (9 Cir., 1954) 216 F.2d 945; Ansehl v. Puritan Pharm. Co., (8 Cir., 1932) 61 F.2d 131, cert. den. 287 U.S. 666, 53 S.Ct. 224, 77 L.Ed. 574; Borden v. General Motors Corp., (S.D.N.Y.1939) 28 F.Supp. 330. Merwin’s article was in large part a paraphrase of portions of the plaintiff’s book, “Mammy Pleasant’s Partner”. Merwin extracted therefrom numerous passages which, though synonyms for certain words are substituted and certain phrases rearranged, are otherwise unchanged in form. In the ordinary case, applying the principles set out above, copyright infringement would be apparent. However, the concept of “fair use” has been established and applied in cases involving scientific, medical and historical materials. If Merwin’s use of the plaintiff’s book (which the plaintiff claimed to be a serious, historically sound work) was a “fair use”, then there has been no actionable infringement. “Fair use” may be defined as a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent. Though technically an infringement of copyright, it is allowed by law on the ground that the appropriation is reasonable and customary. Toksvig v. Bruce Publ’g. Co., supra; Loew’s Inc. v. C. B. S., (S.D.Cal.1955) 131 F.Supp. 165. Whether or not the defendant’s use was a “fair use” is a matter of fact. Eisenschiml v. Fawcett Publications, supra; Mathews Conveyor Co. v. Palmer-Bee Co. (6 Cir., 1943), 135 F.2d 73. Some use of the plaintiff’s book as a source for an article on Mammy Pleasant as an historical personage could certainly be termed “fair”. But not only is Merwin’s article based in large part, on “Mammy Pleasant’s Partner”, it mirrors the manner and style in which the plaintiff chose to set down the factual and historical material she used, and to express her thoughts and conclusions. Such an extensive use is well outside" } ]

[ { "docid": "1605757", "title": "", "text": "in the statute. Before turning specifically to the four factors, it should be noted that the legislative history of § 107 clearly states that the statute is not intended to change the present judicial doctrine of fair use in any way. H.Rep.No.94-1476, 94th Cong., 2d Sess. at 65, U.S.Code Cong. & Admin.News 1976, p. 5659. The admitted reprinting of approximately 92% of plaintiff’s story precludes the fair use defense under prior law. It is well settled that the fair use defense is based on a concept of reasonableness and that it is unavailable where there has been extensive verbatim copying or paraphrasing such as in this case. Benny v. Lowe’s Inc., 239 F.2d 532 (9th Cir. 1956), affirmed by an equally divided Court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 103 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). Consideration of the four factors listed in § 107 also militates against allowing a fair use defense in this case. First, the republication was for commercial rather than educational purposes. Second, almost the entire article was reprinted. Finally, the reprinting eliminated the possibility that plaintiff could sell his article to a legal newspaper such as the Legal Times, and for all practical purposes those newspapers represented the entire market for his article. As Judge Kaufman recently stated, “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.” Iowa State University Research Foundation, Inc. v. American Broadcasting Co., Inc., 621 F.2d 57, 61 (2d Cir. 1980). Defendants also assert that they have a First Amendment right to reprint plaintiff’s article. Conflicts between interests protected by the First Amendment and the copyright laws have been resolved by application of the fair use doctrine. Wainwright Securities, Inc. v. Wall Street Transcript" }, { "docid": "15729551", "title": "", "text": "are not copyrightable. See, e.g., Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir. 1981); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974, 979 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714,17 L.Ed.2d 546 (1967); 1 M. Nimmer, The Law of Copyright § 2.11[A], at 2-157 (1984) (hereinafter “Nimmer”). In Hoehling, for example, we rejected the appeal of the author of a history about the Hindenberg dirigible who asserted that his copyright was infringed by a television studio that used his book as one of its historical sources in making a screenplay about the dirigible. The court said that “factual information is in the public domain[,]” 618 F.2d at 979, and that “the protection afforded the copyright holder has never extended' to history, be it documented fact or explanatory hypothesis.” Id. at 974. What is protected is “the author’s original expression of particular facts.” Id. While facts have not been given copyright protection, as the district court pointed out, compilations of such facts traditionally have been. See, e.g., Schroeder v. William Morrow & Co., 566 F.2d 3 (7th Cir.1977) (directory of nurseries); Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir.1937) (telephone directory); Hartfield v. Peterson, 91 F.2d 998 (2d Cir.1937) (cable and telegraphic code); Jeweler’s Circular Publishing Co. v. Keystone Publishing Co., 281 Fed. 83 (2d Cir.), cert. denied, 259 U.S. 581, 42 S.Ct. 464, 66 L.Ed. 1074 (1922) (jeweler’s directory); List Publishing Co. v. Keller, 30 Fed. 772 (C.C.S.D. N.Y.1887) (social register); see also 1 Nimmer § 2.04[B], at 2-40. Jeweler’s Circular Publishing Co. stated the rule: “A man’s name, his occupation, his place of business, and his residence are none of them subjects of copyright.” But, if a man compiles a book containing such information about the residents of a particular place, he may ... copyright it as a whole, notwithstanding the fact that the separate parts of which it is composed" }, { "docid": "17828729", "title": "", "text": "and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original’s market, are not fair use. Benny v. Loew’s Inc., 239 F.2d 532, 536-37 (9th Cir.1956), aff'd. by an equally divided Court under the name Columbia Broadcasting System, Inc. v. Loew’s, Inc., 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958) (per curiam); see 4 Nimmer & Nimmer, supra, § 13.05[B][1], pp. 13-194 to 13-195, § 13.05[C]; cf. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 580-81 and n. 14, 591, 114 S.Ct. 1164. The distinction is implicit in the proposition, affirmed in all the cases we have cited, that the parodist must not take more from the original than is necessary to conjure it up . and thus make clear to the audience that his work is indeed a parody. If he takes much more, he may begin to attract the audience away from the work parodied, not by convincing them that the work is no good (for that is not a substitution effect) but by providing a substitute for it; • Book, reviews and parodies are merely examples of types of work that quote or otherwise copy from copyrighted works yet constitute fair use because they are complements of (though sometimes negative complements, as in the case of a devastating book review) rather than substitutes for the copyrighted original. The commonest type is simply a quotation from a copyrighted work in a book or article on the same or a related subject. The complementary effect may be quite weak, but the quotation is unlikely to reduce the demand- for the copyrighted work; nor could the copyright owner command a license fee commensurate with the costs of transacting with the copier. Such copying is therefore fair use. Were control of derivative works not part of a copyright owner’s bundle of rights, it would be clear that PIL’s books" }, { "docid": "21323007", "title": "", "text": "copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner’s potential market for his work. While these criteria are interrelated and may vary in relative significance, the last one, i.e., the competitive character of the use, is often the most important. E.g., it has been held “fair use” to copy excerpts from literary works for purposes of criticism or review (Loew’s, Inc. v. CBS, Inc., 131 F. Supp. 165, 105 USPQ 302 (S.D. Cal. 1955), aff'd sub nom. Benny v. Loew’s, Inc., 239 F. 2d 532, 112 USPQ 11 (9th Cir. 1956), aff'd by an egually divided Court, 356 U.S. 43 (1958)); or to copy portions of scholarly works (Greenbie v. Noble, supra; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 136 USPQ 615 (S.D. Cal. 1963)). However, it is not “fair use” to copy substantial portions of a copyrighted work when the new work is a substitute for, and diminishes the potential market for, the original. Hill v. Whalen & Martell, Inc., 220 F. 359 (S.D.N.Y. 1914); Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841). And it has been held that wholesale copying of a copyrighted work is never “fair use” (Leon v. Pacific Tel. & Tel. Co., 91 F. 2d 484, 34 USPQ 237 (9th Cir. 1987); Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 127 USPQ 231 (D.C. Cir. 1960), vacated and remanded, 369 U.S. 111 (1962)), even if done to further educational or artistic goals and without intent to make profit. Wihtol v. Crow, 309 F. 2d 777, 135 USPQ 385 (8th Cir. 1962). Whatever may be the bounds of “fair use” as defined and applied by the courts, defendant is clearly outside those bounds. Defendant’s photocopying is wholesale copying and meets none of the criteria for “fair use.” The photocopies are exact duplicates of the original articles; are intended to be substitutes for, and serve the same purpose as, the original articles; and serve to diminish plaintiff’s potential market" }, { "docid": "22904356", "title": "", "text": "political life by adding language here and there ....” is unjustified. The Nation was perfectly free to use whatever facts were contained in Ford’s memoirs as part of its own original work. What The Nation could not do was compile a work purportedly reporting certain “facts” that did no more than appropriate the same quotes, expressions, selection of language, events, corroboration and recreations that were present in the Ford memoirs and that added nothing original of its own. Thus, The Nation’s paraphrasing of parts of the Ford memoirs constitutes copyright infringement under 17 U.S.C. § 501 (1982) unless it falls within the “fair use” exception. II The “fair use” exception, now codified at 17 U.S.C. § 107 (1982), allows certain unauthorized uses of copyrighted material without civil liability if those uses advance social, educational or scientific causes. See, e.g., Berlin v. E.C. Publications, Inc., 329 F.2d 541, 544-45 (2d Cir.), cert, denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). The heart of the fair use doctrine is that a secondary use of an original work may be tolerated if the use has social value or is valuable for the information it disseminates. See, e.g., Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973) (large-scale photocopying of medical articles by government research institute and its library), aff’d by an equally divided Court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975) (per curiam); Loew’s Inc. v. Columbia Broadcasting System, Inc., 131 F.Supp. 165, 175-76 (S.D.Cal.1955) (discussing the use of extensive quotations in reviewing the fair use doctrine), aff’d sub nom. Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir.1956), aff’d by an equally divided Court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958) (per curiam). The fair use doctrine strikes the balance between the First Amendment and the Copyright Act, or between “the public interest in the free flow of ideas and information [and] the copyright holder’s interest in exclusive proprietary control of his work.” Roy Export Company Establishment of Vaduz, Liechtenstein v. Columbia Broadcasting System, Inc., 672 F.2d 1095," }, { "docid": "6188482", "title": "", "text": "the distribution of the copyrighted work by the alleged infringer “would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter.” See Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Public Affairs Associates, Inc. v. Rickover, 268 F.Supp. 444 (D.D. C.1967); Eisenschiml v. Fawcett Publications, Inc., 246 F.2d 598 (7th Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957); Rohauer v. Killiam Shows, Inc., 379 F.Supp. 723, 733 (S.D.N.Y.1974). Mikaelian and Multiprep do not freely disseminate the MCAT test questions they have copied. The questions are given only to those who pay $485 to enroll in a Multiprep course. The defendants have not sought to add their acquired knowledge of MCAT question content to the public realm. It has also been stated that the fair use doctrine “permits copying of themes or ideas but not their expression.” See Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478 (9th Cir.1961), cert. denied, 368 U.S. 801, 82 S.Ct. 19, 7 L.Ed.2d 15 (1961); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.1936). Other courts have defined fair use as “the privilege of using copyrighted material in a reasonable manner without the copyright owner’s consent.” Public Affairs Associates, Inc. v. Rickover, supra, 268 F.Supp. at 450. See also Toksvig v. Bruce Pub. Co., 181 F.2d 664 (7th Cir.1950). In this case, the defendants have made verbatim use of vast numbers of the plaintiff’s copyrighted test questions. Such massive copyright infringement is not use of the protected work “in a reasonable manner.” Therefore, this Court doubts that the defendants have established their right to refer to the four factors to be considered in determining whether the fair use doctrine is applicable to a particular case. However, even if it is assumed that Multiprep courses are teaching activities within the meaning of the statute, the defendants cannot invoke the fair use defense unless they also show that they" }, { "docid": "10778750", "title": "", "text": "is definitely in competition with plaintiffs’ performances; and 5) does not serve or advance the greater public interest in the development of news, art, science or industry. See also Berlin v. E. C. Publications, Inc., 329 F.2d 541, 544 (2 Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964); cf. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310-311 (2 Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). Moreover, no case or recognized scholar in the field of copyright law, at least to the extent of this Court’s knowledge, supports defendants’ position. A careful review of the pertinent authorities discloses no suggestion that the doctrine of fair use protects a defendant who copies practically verbatim the plaintiff’s work, but adds a few variations in order to make the plaintiff’s production a “better” one. See, e. g., Rosemont Enterprises, Inc. v. Random House, Inc., supra; Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130 (S.D.N.Y.1968); Goldstein, Copyright and the First Amendment, 70 Colum.L. Rev. 983, 1011 (1970); Nimmer, Copyright and the First Amendment, supra; Sobel, Copyright and the First Amendment: A Gathering Storm?, supra. As was aptly stated by the court in Benny v. Loew’s Inc., 239 F.2d 532, 537 (9 Cir. 1956), aff’d per curiam 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958), in rejecting the claim that wholesale copying was permissible if there was an intent to be “critical” of the original work: “One cannot copy the substance of another’s work without infringing his copyright.” This, of course, is not to say that a critical review of another’s work cannot be a proper exercise of fair use. It would seem that critics may quote extensively in order to comment effectively. But here the defendants’ use of plaintiffs’ work far exceeds any reasonable reproduction for the purposes of criticism, comment, or review. VII. INJUNCTIVE RELIEF The Court, being of the opinion that the plaintiffs will probably succeed at trial, that irreparable harm has been demonstrated, and that injunctive relief should be granted to prevent further infringing" }, { "docid": "21323006", "title": "", "text": "43 (1955); W. Jensen, Fair Use: As Viewed by the “User,\" 39 Dicta 25 (1962); L. Yankwich, What Is Fair Use?, 22 U. Chi. L. Rev. 203 (1954); Note, Fair Use: A Controversial Topic in the Latest Revision of Our Copyright Law, 34 U. Cin. L. Rev. 73 (1965); M. Nimmer, Copyright § 145 (1971 ed.); Sophar & HeilpeiN Report at 15; R. Heedham, Tape RecordING, PhoTOCOPYING AND FAIR ÜSE, ASCAP COPYRIGHT LAW SYMPOSIUM (No. 10) 75 (1959); Crossland, The Rise and Fall of Fair Use: The Protection of Literary Materials Against Copyright Infringement by New and Developing Media, 20 S. Car. L. Rev. 153 (1968). Some courts have held that the doctrine is but an application of the principle de minimis non curat lex and, as plaintiff puts it, “comes into p'lay only when a relatively small amount of copying takes place.” Principal factors considered by the courts in deciding whether a particular use of a copyrighted work is a “fair use” are (a) the purpose of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner’s potential market for his work. While these criteria are interrelated and may vary in relative significance, the last one, i.e., the competitive character of the use, is often the most important. E.g., it has been held “fair use” to copy excerpts from literary works for purposes of criticism or review (Loew’s, Inc. v. CBS, Inc., 131 F. Supp. 165, 105 USPQ 302 (S.D. Cal. 1955), aff'd sub nom. Benny v. Loew’s, Inc., 239 F. 2d 532, 112 USPQ 11 (9th Cir. 1956), aff'd by an egually divided Court, 356 U.S. 43 (1958)); or to copy portions of scholarly works (Greenbie v. Noble, supra; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 136 USPQ 615 (S.D. Cal. 1963)). However, it is not “fair use” to copy substantial portions of a copyrighted work when the new work is a substitute for, and diminishes the potential" }, { "docid": "23422171", "title": "", "text": "protection of Disney’s characters. B. Infringement and Fair Use Defendants do not contend that their admitted copying was not substantial enough to constitute an infringement, and it is plain that copying a comic book character’s graphic image constitutes copying to an extent sufficient to justify a finding of infringement. See 2 Nimmer on Copyright § 143.12; see generally Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157 (9th Cir, 1977); Henry Holt & Co. Inc. v. Liggett & Myers Tobacco Co., 23 F.Supp. 302 (E.D.Pa.1938). Defendants instead claim that this infringement should be excused through the application of the fair use defense, since it purportedly is a parody of Disney’s cartoons. At least since this Court’s controversial ruling in Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), affirmed by an equally divided Court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583, the standards for applying the fair use defense in parody cases, like the standards for applying fair use in other contexts, have been a source of considerable attention and dispute. See 2 Nimmer on Copyright § 145. As a general matter, while some commentators have urged that the fair use defense depends only on whether the infringing work fills the demand for the original (see; e. g., Note, Piracy or Parody: Never the Twain, 38 U.Colo.L.Rev. 550 (1966); see generally 2 Nimmer on Copyright § 145), this Court and others have also consistently focused on the substantiality of the taking. See e. g., Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), affirmed by an equally divided Court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583; )Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966) certiorari denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546; 17 U.S.C. § 107(3) (codifying old law). But cf. Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973), affirmed by an equally divided Court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264. In inquiring into the substantiality of the taking, the district court read our Benny" }, { "docid": "14907319", "title": "", "text": "popularity may make its value educational rather than commercial. Clearly, the defendants’ “use is of a commercial nature.” 17 U.S.C. § 107(1). The second factor that we must consider is the nature of the copyrighted work. A use is less likely to be deemed fair when the copyrighted work is a creative product. See, e.g., Brewer v. Hustler Magazine, Inc., 749 F.2d 527, 529 (9th Cir.1984) (citing Sony Corp., 464 U.S. at 455 n. 40, 104 S.Ct. at 795 n. 40); see also 3 Nimmer on Copyright § 13.05[A] at 13-77 (“[CJopyright protection is narrower, and the corresponding application of the fair use defense greater, in the case of factual works than in the case of works of fiction or fantasy.”). Here, the copyrighted work is a fictional short story: a quintessentially creative product. This factor, therefore, militates against a finding of fair use. The third factor is the amount of the portion used in proportion to the entire copyrighted work. It is undisputed that the “Rear Window” film was based on the underlying story, “It Had To Be Murder.” Although it is not entirely clear how much of the story was used in the film, Alfred Hitchcock testified in his deposition that the film was at least “20 percent Cornell Woolrich.” We have held that “[o]ne cannot copy the substance of another’s work without infringing his copyright.” Benny v. Loew’s Inc., 239 F.2d 532, 537 (9th Cir.1956) (television burlesque of copyrighted motion picture is not a fair use), aff'd by an equally divided court sub nom. Columbia Broadcasting System v. Loew’s, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958). Recently, we noted that the Supreme Court’s decision in Sony “casts doubt on [this court’s] previous pronouncements concerning wholesale copying as an absolute preclusion to fair use.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir.1986) (Pregerson, J.). In Sony, however, the Supreme Court merely held that “time-shifting” — making a video-tape copy of a television broadcast for viewing at a later time — was a fair use. Sony does not stand for the" }, { "docid": "21322971", "title": "", "text": "publication of copyrighted material can ever be fair use. For other cases to the same effect, see Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (D.C. Cir. 1960), judgment vacated for insufficient record, 369 U.S. Ill (1962); Benny v. Loew's Inc., 239 F. 2d 532, 536 (9th Cir. 1956), o/ff'cl by an equally divided court sub nom., Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U.S. 43 (1958) ; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 924 (S.D. Cal. 1963). See also M. Nimmer, Nimmer on Copyright §145 at 650-51 (1973 ed.). Although the majority states that the rule announced in the cases cited above is an “overbroad generalization, unsupported by the decisions 'and rejected by years of accepted practice,” the court cites no decisions in support of its position. 3. I recognize that the doctrine of fair use permits writers of scholarly works to make reasonable use of previously copyrighted material by quotation or paraphrase, at least where the amount of copying is small and reliance on other sources is demonstrated. See, e.g., Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967); Simms v. Stanton, 75 F. 6,13-14 (C.C.N.D. Cal. 1896). However, I think the basic error in the court’s decision is its holding that the fair use privilege usually granted to such writers should be extended to cover the massive copying and distribution operation conducted by defendant’s libraries. The articles are not reproduced by the libraries to enable them to write other articles in the same field. In fact, booksellers and licensed copiers of plaintiff’s journals sell copies of journal articles to the same class of users and for the same purposes as the copies reproduced by defendant’s libraries. I do not believe that anyone would contend that the ultimate use of the purchased articles by scientists, doctors, or drug companies would permit the commercial concerns mentioned to reproduce copies without plaintiff’s permission. In an effort to overcome this obstacle, the majority relies in part on the nature and function of the" }, { "docid": "129079", "title": "", "text": "does not deserve less copyright protection just because it is part of a composite work. Therefore, in this case, we view the Defendants as having copied an entire work. Hustler argues that “this court has long maintained the view that wholesale copying of copyrighted material precludes application of the fair use doctrine.” Marcus, 695 F.2d at 1176. See also Benny v. Loew’s, Inc., 239 F.2d 532, 536 (9th Cir.1956), aff'd by an equally divided court sub nom. Columbia Broadcasting System v. Loew’s, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758 (9th Cir.1978), cert. denied, 439 U.S. 1132,. 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). The Supreme Court’s opinion in Sony Corp., 464 U.S. 417, 104 S.Ct. 774, however, casts doubt on our previous pronouncements concerning wholesale copying as an absolute preclusion to fair use. In Sony Corp., the Supreme Court held that “time-shifting” television programs by taping whole programs with a video tape recorder did not have its “ordinary effect of militating against a finding of fair use.” Id. at 450, 104 S.Ct. at 793. Sony Corp. teaches us that the copying of an entire work does not preclude fair use per se. However, “a subsequent user does not require such complete copying if he is truly pursuing a different functional mileau.” 3 Nimmer on Copyright § 13.05[D]. Consequently, although wholesale copying does not preclude fair use per se, the amount of copying that the Defendants did in this case still militates against a finding of fair use. D. Effect Upon Potential Market or Value Finally, we must consider “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). “This last factor is undoubtedly the single most important element of fair use.” Harper & Row, 105 S.Ct. at 2234. See also 3 Nimmer § 13.05[A] at 13-76. “The purpose of copyright is to create incentives for creative effort.” Sony Corp., 464 U.S. at 450, 104 S.Ct. at 793. “[A] use that has no demonstrable effect upon the market" }, { "docid": "23422172", "title": "", "text": "dispute. See 2 Nimmer on Copyright § 145. As a general matter, while some commentators have urged that the fair use defense depends only on whether the infringing work fills the demand for the original (see; e. g., Note, Piracy or Parody: Never the Twain, 38 U.Colo.L.Rev. 550 (1966); see generally 2 Nimmer on Copyright § 145), this Court and others have also consistently focused on the substantiality of the taking. See e. g., Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), affirmed by an equally divided Court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583; )Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966) certiorari denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546; 17 U.S.C. § 107(3) (codifying old law). But cf. Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973), affirmed by an equally divided Court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264. In inquiring into the substantiality of the taking, the district court read our Benny opinion to hold that any substantial copying by a defendant, combined with the fact that the portion copied constituted a substantial part of the defendant’s work, automatically precluded the fair use defense. That such a strict reading of Benny was unjustified is indicated first by the fact that it would essentially make any fair use defense fruitless. If the substantiality of the taking necessary to satisfy the first half of that test is no different from the substantiality necessary to constitute an infringement, then the Benny test would be reduced to an absurdity, covering any infringement except those falling within the much-criticized and abandoned exception for cases in which the part copied was not a substantial part of the defendant’s work. Compare Rosem-ont Enterprises, Inc. v. Random House, Inc., 256 F.Supp. 55 (S.D.N.Y.1966), reversed on other grounds, 366 F.2d 303 (2d Cir. 1966), certiorari denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546; see 2 Nimmer on Copyright § 143.2. The language in Benny concerning the substantiality of copying can be given a reading" }, { "docid": "21322970", "title": "", "text": "contained therein as fully as if each were individually copyrighted. Section 3 expressly mentions periodicals, and for the purpose of determining whether there has been infringement, each copyrightable component is to be treated as a complete work. Markham v. A. E. Borden Co., 206 F. 2d 199, 201 (1st Cir. 1953). It is undisputed that the photocopies in issue here were exact duplicates of the original articles; they were intended to be substitutes for and they served the same purpose as the original articles. They were copies of complete copyrighted works within the meaning of Sections 3 and 5 of the Copyright Act. This is the very essence of wholesale copying and, without more, defeats the defense of fair use. The rule to be applied in such a situation was stated in Leon v. Pacific Telephone & Telegraph Co., 91 F. 2d 484, 486 (9th Cir. 1937) as follows: Counsel have not disclosed a single authority, nor have we been able to find one, which lends any support to the proposition that wholesale copying and publication of copyrighted material can ever be fair use. For other cases to the same effect, see Public Affairs Associates, Inc. v. Rickover, 284 F. 2d 262, 272 (D.C. Cir. 1960), judgment vacated for insufficient record, 369 U.S. Ill (1962); Benny v. Loew's Inc., 239 F. 2d 532, 536 (9th Cir. 1956), o/ff'cl by an equally divided court sub nom., Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U.S. 43 (1958) ; Holdredge v. Knight Publishing Corp., 214 F. Supp. 921, 924 (S.D. Cal. 1963). See also M. Nimmer, Nimmer on Copyright §145 at 650-51 (1973 ed.). Although the majority states that the rule announced in the cases cited above is an “overbroad generalization, unsupported by the decisions 'and rejected by years of accepted practice,” the court cites no decisions in support of its position. 3. I recognize that the doctrine of fair use permits writers of scholarly works to make reasonable use of previously copyrighted material by quotation or paraphrase, at least where the amount of copying is small and reliance on other sources" }, { "docid": "1605756", "title": "", "text": "fair use defense. As they interpret that defense, copying is not considered an infringement of a copyright when the copying is for news reporting. Examination of the statute shows otherwise: ... the fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, ... is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. Use of copyrighted material in a news story may constitute a fair use, but only if the court deems it so after considering the four factors listed in the statute. Before turning specifically to the four factors, it should be noted that the legislative history of § 107 clearly states that the statute is not intended to change the present judicial doctrine of fair use in any way. H.Rep.No.94-1476, 94th Cong., 2d Sess. at 65, U.S.Code Cong. & Admin.News 1976, p. 5659. The admitted reprinting of approximately 92% of plaintiff’s story precludes the fair use defense under prior law. It is well settled that the fair use defense is based on a concept of reasonableness and that it is unavailable where there has been extensive verbatim copying or paraphrasing such as in this case. Benny v. Lowe’s Inc., 239 F.2d 532 (9th Cir. 1956), affirmed by an equally divided Court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 103 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132," }, { "docid": "23422173", "title": "", "text": "opinion to hold that any substantial copying by a defendant, combined with the fact that the portion copied constituted a substantial part of the defendant’s work, automatically precluded the fair use defense. That such a strict reading of Benny was unjustified is indicated first by the fact that it would essentially make any fair use defense fruitless. If the substantiality of the taking necessary to satisfy the first half of that test is no different from the substantiality necessary to constitute an infringement, then the Benny test would be reduced to an absurdity, covering any infringement except those falling within the much-criticized and abandoned exception for cases in which the part copied was not a substantial part of the defendant’s work. Compare Rosem-ont Enterprises, Inc. v. Random House, Inc., 256 F.Supp. 55 (S.D.N.Y.1966), reversed on other grounds, 366 F.2d 303 (2d Cir. 1966), certiorari denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546; see 2 Nimmer on Copyright § 143.2. The language in Benny concerning the substantiality of copying can be given a reading much more in keeping with the context of that case and the established principles at the time of that case if the opinion is understood as setting a threshold that eliminates from the fair use defense copying that is virtually complete or almost verbatim. Accord 2 Nimmer on Copyright § 145. It was an established principle at the time of Benny that such verbatim copying precluded resort to the fair use defense. See, e. g., Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir. 1937). Moreover, the Benny facts presented a particularly appropriate instance to apply that settled principle. As the Benny district court found, Benny’s “Autolight” tracked the parodied “Gas Light” in almost every respect: the locale and period, the setting, characters, story points, incidents, climax and much of the dialogue all were found to be identical. 131 F.Supp. 165, 171. In this context, Benny should not be read as taking the drastic step of virtually turning the test for fair use into the test for infringement. See Columbia Pictures Corp." }, { "docid": "14907320", "title": "", "text": "“It Had To Be Murder.” Although it is not entirely clear how much of the story was used in the film, Alfred Hitchcock testified in his deposition that the film was at least “20 percent Cornell Woolrich.” We have held that “[o]ne cannot copy the substance of another’s work without infringing his copyright.” Benny v. Loew’s Inc., 239 F.2d 532, 537 (9th Cir.1956) (television burlesque of copyrighted motion picture is not a fair use), aff'd by an equally divided court sub nom. Columbia Broadcasting System v. Loew’s, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958). Recently, we noted that the Supreme Court’s decision in Sony “casts doubt on [this court’s] previous pronouncements concerning wholesale copying as an absolute preclusion to fair use.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir.1986) (Pregerson, J.). In Sony, however, the Supreme Court merely held that “time-shifting” — making a video-tape copy of a television broadcast for viewing at a later time — was a fair use. Sony does not stand for the proposition that wholesale copying for a purely commercial purpose may ever be a fair use. Indeed, in Harper & Row the Supreme Court held that the unauthorized quotation of an insubstantial portion of an unpublished manuscript was not a fair use when the quotation “took what was essentially the heart of the book.” 105 S.Ct. at 2233 (citation omitted). Here, a substantial portion of the underlying story, “It Had To Be Murder,” was used in the “Rear Window” film. Even if the film did not take “what was essentially the heart of the [story],” we conclude, based on our application of the other four statutory factors, that the defendants’ use was not a fair use. The fourth factor that we must consider is the effect of the use on the potential market for the copyrighted work. Nimmer terms this factor “the most important, and indeed, central fair use factor.” 3 Nimmer on Copyright § 13.05[A] at 13-80. To illustrate the application of this factor, Nim-mer posits a hypothetical in which an unauthorized motion picture is" }, { "docid": "129078", "title": "", "text": "sued the company for selling a tape of a story from one of its broadcasts. The court held that the feature, as a coherent narrative, stands alone as a copyrighted work. Id. at 1497. Therefore, the company had copied an entire work. The court distinguished the case from Triangle Publications because the program segment was copyrighted separately and was stored separately from the rest of the broadcast. Id. at 1497 n. 10. Thus to determine whether the parody should be treated as an “entire work,” we consider the relationship of the copied parody to the periodical as a whole. Unlike the cover of TV Guide in Triangle Publications, the inside pages of a magazine are not on public display. Moreover, the parody in this case, like the story in Pacific and Southern Co., represents the “essence” of Hustler Magazine. In addition, like the story in Pacific and Southern Co. and unlike the magazine cover in Triangle Publications, the parody is not an interwoven component of the magazine, but can stand totally alone. A creative work does not deserve less copyright protection just because it is part of a composite work. Therefore, in this case, we view the Defendants as having copied an entire work. Hustler argues that “this court has long maintained the view that wholesale copying of copyrighted material precludes application of the fair use doctrine.” Marcus, 695 F.2d at 1176. See also Benny v. Loew’s, Inc., 239 F.2d 532, 536 (9th Cir.1956), aff'd by an equally divided court sub nom. Columbia Broadcasting System v. Loew’s, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758 (9th Cir.1978), cert. denied, 439 U.S. 1132,. 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). The Supreme Court’s opinion in Sony Corp., 464 U.S. 417, 104 S.Ct. 774, however, casts doubt on our previous pronouncements concerning wholesale copying as an absolute preclusion to fair use. In Sony Corp., the Supreme Court held that “time-shifting” television programs by taping whole programs with a video tape recorder did not have its “ordinary effect of militating against" }, { "docid": "565175", "title": "", "text": "(2d Cir.1984), is not persuasive. In Leon, plaintiff’s entire selection of names and numbers were copied and listed in numerical instead of alphabetical order. Leon, 91 F.2d at 484-85. In Eckes, the plaintiff published a list of 18,000 common baseball cards and selected 5,000 of those cards as “premium” cards; the defendant’s listing selected substantially the same 5,000 cards as “premium” cards. Eckes, 736 F.2d at 860-61. In addition, to the extent that Leon suggests that research or labor is protectible, later cases have rejected that theory. See, e.g., Landsberg, 736 F.2d at 489 (approving Second Circuit case holding that a movie studio’s subsequent use of author’s research and theory on the Hindenberg explosion was noninfringing absent wholesale appropriation of the work) (citing Hoehling, 618 F.2d 972); Eckes, 736 F.2d at 862 (noting that “sweat of a researcher’s brow” does not merit copyright protection); Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368-70 (5th Cir.1981) (holding that research involved in obtaining facts is not copyrightable and noting that the directory cases have been accorded special protection not applicable to other factual works) (cited following Hoehling discussion in Landsberg, 736 F.2d at 489); 1 M. Nimmer, supra, § 3.04, at 3-20 (according copyright protection to research “distorts basic copyright principles” by creating a “monopoly in public domain materials”). As the Second Circuit has observed: We ... cannot subscribe to the view that an author is absolutely precluded from saving time and effort by referring to and relying upon prior published material____ It is just such wasted effort that the proscription against the copyright of ideas and facts, and to a lesser extent the privilege of fair use, are designed to prevent. Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 310 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967) (citations omitted) (quoted in Miller, 650 F.2d at 1371); see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 550 n. 3, 105 S.Ct. 2218, 2225 n. 3, 85 L.Ed.2d 588 (1985) (noting that “ ‘rigid application of the copyright statute’" }, { "docid": "10778749", "title": "", "text": "the Christian message that Jesus not only died, but rose again on the ‘third day’ to fulfill the Hebraic prophesies that He was the Messiah.” Therefore, they argue, the defendants’ performance is within the scope of the fair use doctrine as a “literary and religious criticism of the plaintiffs’ work.” Although it has been said that the issue of fair use “is the most troublesome in the whole law of copyright”, Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2 Cir. 1939), it seems crystal clear to the Court that defendants’ almost total copying of plaintiffs’ work cannot possibly be considered a “fair use.” Cf. Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484, 486 (9 Cir. 1937). In applying the relevant criteria, see Sobel, Copyright and the First Amendment: A Gathering Storm? in 19 Copyright Law Symposium 43 (1971), the defendants’ production: 1) is obviously a substitute for plaintiffs’ work; 2) copies almost all of the plaintiffs’ lyrics, score, and sequence of songs; 3) undoubtedly has and will injure plaintiffs financially; 4) is definitely in competition with plaintiffs’ performances; and 5) does not serve or advance the greater public interest in the development of news, art, science or industry. See also Berlin v. E. C. Publications, Inc., 329 F.2d 541, 544 (2 Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964); cf. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310-311 (2 Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). Moreover, no case or recognized scholar in the field of copyright law, at least to the extent of this Court’s knowledge, supports defendants’ position. A careful review of the pertinent authorities discloses no suggestion that the doctrine of fair use protects a defendant who copies practically verbatim the plaintiff’s work, but adds a few variations in order to make the plaintiff’s production a “better” one. See, e. g., Rosemont Enterprises, Inc. v. Random House, Inc., supra; Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130 (S.D.N.Y.1968); Goldstein, Copyright and the First Amendment, 70 Colum.L. Rev." } ]

[ { "docid": "15334520", "title": "", "text": "or the North Dakota public policy against retaliatory discharge of a whistle blower. Alternatively, the court concluded that Birchem has no evidence of a pretextual discharge. It dismissed his contract claim because the Field Agent Contract was terminable at will and may not be varied by Wentz’s prior oral representations. Finally, the court held that Birchem could not prove the “extreme and outrageous conduct” necessary for a claim of intentional infliction of emotional distress. Birchem appeals each of those rulings. I. Birchem’s ADA Claim. A. The Employee Issue. Like Title VII, the ADA protects “employees” but not independent contractors. See Wilde v. County of Kandiyohi, 15 F.3d 103, 104 (8th Cir.1994). The Act defines an “employee” as “an individual employed by an employer.” 42 U.S.C. § 12111(4). When Congress uses this “completely circular” definition, courts apply the general common law of agency to distinguish between protected employees and unprotected independent contractors. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 & n. 3, 112 S.Ct. 1344, 1348 & n. 3, 117 L.Ed.2d 581 (1992). In applying the common law of agency test, the Supreme Court looks at the large number of factors that define the parties’ total contractual relationship, no one of which is determinative. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-53, 109 S.Ct. 2166, 2178-80, 104 L.Ed.2d 811 (1989), followed in Darden, 503 U.S. at 323-24, 112 S.Ct. at 1348-49. The Court “typical ly weighs the common-law factors listed in the Restatement [ (Second) of Agency § 220(2) (1958) ] and some additional factors related to the worker’s economic situation, like how the work relationship may be terminated, whether the worker receives yearly leave, whether the worker accrues retirement benefits, and whether the hiring party pays social security taxes.” Wilde, 15 F.3d at 105. We review the ultimate question of employment status de novo. See Berger Transfer & Storage v. Central States, S.E. & S.W. Areas Pension Fund, 85 F.Bd 1374, 1378 (8th Cir.1996). We agree with the district court that Birchem and KOC had an independent contractor relationship. First, each Field Agent Contract" } ]

[ { "docid": "17827006", "title": "", "text": "intended to describe “the conventional master-servant relationship as understood by common-law agency doctrine.” Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 259 (4th Cir.1997) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)). In other words, Russell’s status as an “employee” for purposes of Title VII turns upon whether her relationship with BSN more closely resembled that of an agent or an independent contractor. Cilecek, 115 F.3d at 261 (citing MacMullen v. S.C. Elec. & Gas Co., 312 F.2d 662, 670 (4th Cir. 1963)). In Cmty. for Creative Nonr-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the United States Supreme Court identified the following as factors often relevant to an agent/independent contractor inquiry: (1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party’s discretion over when and how long to work; (7) the method of payment; (8) the hired party’s role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax treatment of the hired party. Id. at 751-52, 109 S.Ct. 2166; see also Farlow v. Wachovia Bank of North Carolina, N.A., 259 F.3d 309, 313 (4th Cir. 2001); Cilecek, 115 F.3d at 260 (Title VII cases quoting Reid). “No one factor is determinative, and the consideration of factors must relate to the particular relationship under consideration.” Cilecek, 115 F.3d at 260. Thus, it is often appropriate to alter or supplement the Reid factors to fit the particular nature of the relationship examined. See id. at 260-61 (applying specifically tailored factors to determine employee status under Title VII). Often, however, the three most important inquiries are whether the defendant exercised significant control over the plaintiffs hiring, firing, or" }, { "docid": "12217708", "title": "", "text": "argument on appeal is that the district court improperly concluded that she was not a Rockland employee within the meaning of Title VII. She argues that although she worked at Rockland as an unpaid intern, she nevertheless satisfies the common-law agency definition of “employee.” We disagree. The definition of the term “employee” provided in Title VII is circular: the Act states only that an “employee” is an “individual employed by an employer.” 42 U.S.C. § 2000e(f); see also EEOC v. Johnson & Higgins, 91 F.3d 1529, 1538 (2d Cir.1996). However, it is well established that when Congress uses the term “employee” without defining it with precision, courts should presume that Congress had in mind “the conventional master-servant relationship as understood by the common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 2172-73, 104 L.Ed.2d 811 (1989)); see also Walters v. Metropolitan Educ. Enters., Inc., -U.S.-,-, 117 S.Ct. 660, 666, 136 L.Ed.2d 644 (1997); Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir.1993). In most cases where an attempt has been made to discern the contours of the “conventional master-servant relationship,” it has been because a court has been asked to consider whether, under a particular statute, a party is an employee or an independent contractor. See, e.g., Reid, 490 U.S. at 739-40, 109 S.Ct. at 2172-73 (considering the Copyright Act of 1976, 17 U.S.C. § 101); Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992) (considering ERISA, 29 U.S.C. § 1132(a)); Alford v. United States, 116 F.3d 334, 337-38 (8th Cir.1997) (considering 26 U.S.C. § 62(a)(1) of the Internal Revenue Code); Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir.1997) (considering Title VII); Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 232 (2d Cir.1995) (considering ERISA). In this context, the Supreme Court has outlined the following factors, culled from the Restatement of Agency, see Reid, 490 U.S. at 752 n. 31, 109 S.Ct. at 2179 n." }, { "docid": "12211877", "title": "", "text": "more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). II. Title VII and Employment Status Title VII provides that it shall be unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment on the basis of, inter alia, the individual’s national origin. 42 U.S.C. § 2000e-2(l). Title VII protects only “employees”; independent contractors may not obtain relief under the statute. Stetka v. Hunt Real Estate Corp., 859 F.Supp. 661, 665 (W.D.N.Y.1994); Krijn v. Simone, 752 F.Supp. 102, 104 (S.D.N.Y.1990), aff'd mem., 930 F.2d 910 (1991). The United States Supreme Court has held that “where a statute containing the term ‘employee’ does not helpfully define it, the common law agency test should be applied.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); see also O’Connor v. Davis, 126 F.3d 112, 115 (2d Cir.1997). Because Title VII contains only a circular definition of “employee,” O’Connor, 126 F.3d at 115; Stetka, 859 F.Supp. at 666, we look to common law agency principles to determine whether Tagare was an employee or independent contractor. In Community for Creative Non-Violence v. Reid, the Supreme Court set out the following factors relevant to this inquiry: (I) the tax treatment of the hired party; (3) the skill required; (4) the hiring party’s right to control the manner and means by which the product is accomplished; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the source of the instrumentalities and tools; (7) the location of the work; (8) the duration of the relationship between the parties; (9) the extent of the hired party’s discretion over when" }, { "docid": "12217707", "title": "", "text": "Title IX. Finally, the defendants argued that O’Connor failed to establish a prima facie case of sexual harassment. In an opinion and order dated May 20, 1996, the district court granted the defendants’ ' summary judgment motion, agreeing that O’Connor was not an “employee” under Title VII and that Rockland was not an “educational institution” under Title IX. Because of this disposition, the district court did not reach the defendants’ assertion that O’Connor failed to establish a prima facie case of sexual harassment. DISCUSSION Summary judgment may not be granted unless the court determines that there are no genuine issues of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Because summary judgment was granted against O’Connor, we consider all of the evidence in the light most favorable to her. See Kracunas v. Iona College, 119 F.3d 80, 82-83 (2d Cir.1997). I. Title VII O’Connor’s first argument on appeal is that the district court improperly concluded that she was not a Rockland employee within the meaning of Title VII. She argues that although she worked at Rockland as an unpaid intern, she nevertheless satisfies the common-law agency definition of “employee.” We disagree. The definition of the term “employee” provided in Title VII is circular: the Act states only that an “employee” is an “individual employed by an employer.” 42 U.S.C. § 2000e(f); see also EEOC v. Johnson & Higgins, 91 F.3d 1529, 1538 (2d Cir.1996). However, it is well established that when Congress uses the term “employee” without defining it with precision, courts should presume that Congress had in mind “the conventional master-servant relationship as understood by the common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 2172-73, 104 L.Ed.2d 811 (1989)); see also Walters v. Metropolitan Educ. Enters., Inc., -U.S.-,-, 117 S.Ct. 660, 666," }, { "docid": "16320360", "title": "", "text": "U.S.C. § 2000e(b). In adopting this circular definition, Congress has left the term “employee” essentially undefined insofar as an- employee is to be distinguished from an independent contractor. The parties to this case agree that Title VII does not cover an independent contractor. It now appears to be settled that when Congress uses the term “employee” in a statute without defining it, the courts will presume that Congress intended to describe “the conventional master-servant relationship as understood by common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1347-48, 117 L.Ed.2d 581 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-740, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989) (addressing rights under the Copyright Act of 1976 to a sculpture “prepared by an employee within the scope of his or her employment”)). Following Reid, the Court in Nationwide adopted the “common-law test for determining who qualifies as an ‘employee’ under ERISA.” Id. 503 U.S. at 323, 112 S.Ct. at 1348. And again recently, the Court agreed that “employee” under Title VII is defined by “traditional principles of agency law.” Walters v. Metropolitan Educ. Enter. Inc., — U.S. —, —, 117 S.Ct. 660, 666, 136 L.Ed.2d 644 (1997). Because Congress had overruled the Supreme Court’s earlier interpretations of “employee” under both the National Labor Relations Act and the Social Security Act, in each of which the Court had defined employee “in fight of the mischief to be corrected and the end to be obtained,” see United States v. Silk, 331 U.S. 704, 713, 67 S.Ct. 1463 1468, 91 L.Ed. 1757 (1947), the Court in Reid and Nationwide abandoned that approach, adopting the presumption that “Congress means an agency law definition for ‘employee’ unless it clearly indicates otherwise.” Nationwide, 503 U.S. at 325, 112 S.Ct. at 1349. In order to establish a uniform nationwide application of the terms “employer,” “em ployee,” and “scope of employment” for purpose of applying federal statutes, Reid instructs that we rely on “the general common law of agency” and not the law of a particular state. Reid, 490" }, { "docid": "7993092", "title": "", "text": "has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Reid, 490 U.S. at 739-40, 109 S.Ct. 2166; see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). The phrase “master and servant” means “[t]he relation between two persons, one of whom (the master) has authority over the other (the servant), with the power to direct the time, manner, and place of the services provided.” Black’s Law Dictionary 1123 (10th ed.2014). Under the common law, the primary indicium of a master-servant relationship is a master’s ability to control the manner and means by which production is accomplished. See Reid, 490 U.S. at 751, 109 S.Ct. 2166 (citing Restatement (Second) of Agency § 220). In Nationwide Mutual Insurance Co. v. Darden, the Supreme Court considered whether a claimant was an “employee” under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., which nominally defines an “employee” as “any individual employed by an employer.” Id. at § 1002; 503 U.S. at 322-27, 112 S.Ct. 1344. There, the Court applied Reid’s “well established principle” that Congress intended “employee” to connote a conventional master-servant relationship under the common law, and adopted a common-law test for distinguishing between an employee and an independent contractor. 503 U.S. at 322-27, 112 S.Ct. 1344. The Court explained that Reid signaled “[the Supreme Court’s] abandonment of [United States v. Silk ]’s [331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) ] emphasis on construing [a] term in the light of the mischief to be corrected and the end to be attained.” Darden, 503 U.S. at 325, 112 S.Ct. 1344 (internal quotation marks omitted). In other words, the Darden court confirmed that courts should presume Congress intended a term to have its settled, common-law definition “unless [the statute] clearly indicates otherwise,” even over the argument that a broad reading is necessary to “advance ... [an act’s] remedial purposes.” Id. at 325, 112 S.Ct. 1344. In this case, the statutory text" }, { "docid": "16320359", "title": "", "text": "He wasn’t required to be on call. He designated his own shifts. And he was not supervised basically in the providing of care even though he did use their equipment. I believe simply with these differences in a regular employee, that simply the faet that he was paid by them and used the equipment that they provide in their facility does not make him an employee. And when you add all these up, I find that it is clear that he was an independent contractor and not covered by the federal Act. The court dismissed pendent state law claims without prejudice to their prosecution in state court. This appeal followed. II Title VII of the Civil Rights Act prohibits employers from retaliating against their employees for testifying in support of an employment discrimination claim. See 42 U.S.C. § 2000e-3. The Act defines “employee” as “an individual employed by an employer.” 42 U.S.C. § 2000e(f). And “employer” is defined as a “person ... who has fifteen or more employees” during a specified period of time. 42 U.S.C. § 2000e(b). In adopting this circular definition, Congress has left the term “employee” essentially undefined insofar as an- employee is to be distinguished from an independent contractor. The parties to this case agree that Title VII does not cover an independent contractor. It now appears to be settled that when Congress uses the term “employee” in a statute without defining it, the courts will presume that Congress intended to describe “the conventional master-servant relationship as understood by common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1347-48, 117 L.Ed.2d 581 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-740, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989) (addressing rights under the Copyright Act of 1976 to a sculpture “prepared by an employee within the scope of his or her employment”)). Following Reid, the Court in Nationwide adopted the “common-law test for determining who qualifies as an ‘employee’ under ERISA.” Id. 503 U.S. at 323, 112 S.Ct. at 1348. And again recently, the Court agreed" }, { "docid": "17827005", "title": "", "text": "(quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). III. DISCUSSION A. Title VII claims 1. Whether Russell was an employee or independent contractor a. Legal framework Russell alleges BSN subjected her to employment discrimination in the form of retaliation and sexual harassment, in violation of Title VII. BSN contends Russell lacks standing to maintain her Title VII claims because she was not BSN’s “employee” as that term is used in Title VII. See Bryant v. Clevelands, Inc., 193 F.R.D. 486, 487-88 (E.D.Va.2000) (explaining that a plaintiff bears the burden of demonstrating the court’s subject-matter jurisdiction over a Title VII claim). The definitions provided in Title VII offer little guidance when, as is the case here, a plaintiffs status as a current or former employee is disputed. See 42 U.S.C. § 2000e(f) (defining an “employee” as “an individual employed by an employer”); § 2000e(b) (defining an “employer” as “a person ... who has fifteen or more employees”). Instead, courts presume that by using the term “employee,” Congress intended to describe “the conventional master-servant relationship as understood by common-law agency doctrine.” Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 259 (4th Cir.1997) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)). In other words, Russell’s status as an “employee” for purposes of Title VII turns upon whether her relationship with BSN more closely resembled that of an agent or an independent contractor. Cilecek, 115 F.3d at 261 (citing MacMullen v. S.C. Elec. & Gas Co., 312 F.2d 662, 670 (4th Cir. 1963)). In Cmty. for Creative Nonr-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the United States Supreme Court identified the following as factors often relevant to an agent/independent contractor inquiry: (1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of" }, { "docid": "23703935", "title": "", "text": "determine whether a hired party is an employee or an independent contractor. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-25 & n. 3, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (ERISA), followed in Birchem, 116 F.3d at 312-13(ADA), and in Wilde, 15 F.3d at 105-06 (Title VII). In applying this test, the Court has instructed us to consider a nonexhaustive list of factors derived primarily from the Restatement (Second) of Agency § 220(2) (1958): In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.... No one of these factors is determinative. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (footnotes omitted). In weighing these factors, “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Darden, 503 U.S. at 324, 112 S.Ct. 1344 (quotation omitted); see Hunt v. Missouri, 297 F.3d 735, 741 (8th Cir.2002). The district court may properly consider economic aspects of the parties’ relationship. See Wilde, 15 F.3d at 106. “Our inquiry ... requires more than simply tallying factors on each side and selecting the winner on the basis of a point score.” Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 487 (8th Cir.2000). On appeal, Lerohl, Hanson, and the EEOC primarily argue" }, { "docid": "19783575", "title": "", "text": "ther definition is particularly helpful in deciding whether an employment relationship exists. In such situations — i.e., where a definition is “nominal” or is otherwise unhelpful — the courts must look outside the statute for guidance. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). Where a statute “ ‘uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” Comty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981)). In particular, the Supreme Court has stressed that, “when Congress has used the term ‘employee’ without defining it, ... Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Reid, 490 U.S. at 739-40, 109 S.Ct. 2166; see Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-45, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (applying federal common-law of agency to definition of “employee” under ADA); Darden, 503 U.S. at 323, 112 S.Ct. 1344 (ERISA); Reid, 490 U.S. at 743, 109 S.Ct. 2166 (Copyright Act of 1976). In attempting to give guidance in that regard, the Supreme Court culled the following non-exhaustive, thirteen-factor list of considerations from federal case law and the Restatement (Second) of Agency: the hiring party’s right to control the manner and means by which the product is accomplished .... [;] the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision" }, { "docid": "3966316", "title": "", "text": "called “unhelpful[ ],” Pietras v. Bd. of Fire Comm’rs, 180 F.3d 468, 473 (2d Cir.1999), and “circular,” O’Connor, 126 F.3d at 115. “Courts have assumed, however, that in using the term employee Congress had in mind ‘the conventional master-servant re lationship as understood by common-law agency doctrine.’ ” Pietras, 180 F.3d at 473 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)). In ascertaining whether WEP participants are “employees” for purposes of Title VII, we therefore look to “the cluster of ideas” attached to that term under the common law. See INS v. St. Cyr, 533 U.S. 289, 312 n. 35, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). Much of the common law on this subject differentiates employees from independent contractors, see, e.g., O’Connor, 126 F.3d at 115, a distinction that is irrelevant here. This Court has pointed out, however, that independent contractors and employees share an essential feature: both are “hired parties.” Id. (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)). “[T]hus, a prerequisite to considering whether an individual is one or the other under common-law agency principles is that the individual have been hired in the first instance. That is, only where a ‘hire’ has occurred should the common-law agency analysis be undertaken.” Id.; see Reid, 490 U.S. at 743, 109 S.Ct. 2166 (“[I]n using the term ‘employee,’ ... Congress meant to refer to a hired party in a conventional employment relationship.”) (emphasis added); cf. Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 123 S.Ct. 1673, 1680, 155 L.Ed.2d 615 (2003) (stating that “[t]he employer can hire and fire employees”). In O’Connor, we articulated the requirement that a Title VII plaintiff be “hired in the first instance.” O’Connor, 126 F.3d at 115. In that case, a college student sued a hospital in which she had been working as an intern, alleging sexual harassment in violation of Title VII. Id. at 113. In rejecting" }, { "docid": "7993091", "title": "", "text": "16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted). The plain meaning alone is sufficient to end the inquiry. However, the Supreme Court has also instructed us on how to interpret “employee” when Congress does not define it. “It is ... well established that where Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739,109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (internal quotation marks and alterations omitted); see also N.L.R.B. v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981); Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). “[W]hen Congress has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Reid, 490 U.S. at 739-40, 109 S.Ct. 2166; see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). The phrase “master and servant” means “[t]he relation between two persons, one of whom (the master) has authority over the other (the servant), with the power to direct the time, manner, and place of the services provided.” Black’s Law Dictionary 1123 (10th ed.2014). Under the common law, the primary indicium of a master-servant relationship is a master’s ability to control the manner and means by which production is accomplished. See Reid, 490 U.S. at 751, 109 S.Ct. 2166 (citing Restatement (Second) of Agency § 220). In Nationwide Mutual Insurance Co. v. Darden, the Supreme Court considered whether a claimant was an “employee” under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., which nominally defines an “employee” as" }, { "docid": "15030351", "title": "", "text": "decision in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), we now adopt the common law test for determining who qualifies as an “employee” under the ADEA and expressly hold that covered employees under the ADEA are those who are employees under traditional agency law principles. While the Supreme Court has not directly determined this issue, the Court in Darden faced the task of interpreting a definition of “employee” found in ERISA, 29 U.S.C. § 1002(6) (“any individual employed by an employer”), that is virtually, identical to that found in the ADEA, 29 U.S.C. § 630(f) (“an individual employed by any employer”). See Darden, 503 U.S. at 323, 112 S.Ct. at 1348. The Court found this to be a “nominal definition” that “is completely circular and explains nothing.” Id. In the absence of any provision suggesting a contrary congressional design or an indication that “absurd results” would follow, the Court took the view that the term “employee” should be interpreted in accordance with traditional agency law principles: “[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.... In the past, when Congress has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Darden, 503 U.S. at 322-23, 112 S.Ct. at 1348 (internal citations omitted) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989) (internal quotation marks' omitted)). To help avoid any confusion on the matter, the Darden Court went on to summarize the operative common law test with the following language: “In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities" }, { "docid": "6282339", "title": "", "text": "the companies failed to repay a $420,000 informal loan from the other). We therefore find no error in the determination of the district court that there is no genuine issue of material fact with respect to whether Carpet Workroom and A & M are alter egos of one another. C. Summary judgment was appropriate on the issue of whether Carpet Workroom employs independent contractors to install its flooring Another key component of Resilient Floor’s claim was to establish the applicability of 29 U.S.C. § 1145 (a part of ERISA), which mandates that fringe-benefit contributions be made on behalf of employees covered by collective bargaining agreements. This ERISA provision, however, is applicable only to company employees, not independent contractors. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 321, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). Thus, even if Resilient Floor were able to establish that A & M and Carpet Workroom were alter egos, it would still need to prove that the installers used by Carpet Workroom are employees within the definition of ERISA in order to recover trust fund contributions on their behalf. This court applies de novo review to the question of whether an individual is an employee or an independent contractor. Weary v. Cochran, 377 F.3d 522, 524 (6th Cir.2004). Although ERISA’s definition of an employee as “an individual employed by an employer,” 29 U.S.C. § 1002(6), “is completely circular and explains nothing,” Darden, 503 U.S. at 323, 112 S.Ct. 1344, the Supreme Court has formulated a common-law test for the lower courts to apply in determining this issue. . The most important consideration is whether the employer has a “right to control the manner and means by which the product is accomplished.” Id. (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)). To assess the amount of control exercised by the employer, the court should look to the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the" }, { "docid": "19783574", "title": "", "text": "clearly erroneous, and that the defendants “misused” the tests in making employment decisions as to “in service” teachers. In defense of their victory below, both appellees renew their arguments that Title VII does not apply to them. We address appellees’ claims first. III A Title VII makes it “an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Consequently, the existence of an employer-employee relationship is a primary element of Title VII claims. See Tadros v. Coleman, 717 F.Supp. 996, 1004 (S.D.N.Y.1989), aff'd, 898 F.2d 10 (2d Cir.1990) (per curiam); cf. Arbaugh v. Y & H Corp., — U.S. -, 126 S.Ct. 1235, 1245, 163 L.Ed.2d 1097 (2006) (holding that statutory employee-numerosity requirement is an element of a claim under Title VII). Although Title VII provides definitions of both “employer” and “employee,” nei ther definition is particularly helpful in deciding whether an employment relationship exists. In such situations — i.e., where a definition is “nominal” or is otherwise unhelpful — the courts must look outside the statute for guidance. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). Where a statute “ ‘uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” Comty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981)). In particular, the Supreme Court has stressed that, “when Congress has used the term ‘employee’ without defining it, ... Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Reid, 490 U.S. at 739-40, 109 S.Ct. 2166; see Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S." }, { "docid": "23703934", "title": "", "text": "In mid-1999, the Sinfonia stopped offering work to Lerohl and Hanson. Lerohl alleges the Sinfonia and Fishman violated Title VII by terminating her in retaliation for complaining about sexual harassment by Fishman. Hanson alleges defendants violated the ADA by ending her long-standing working relationship when she sought to resume playing after being absent several months while recovering from injuries sustained during a Sinfonia rehearsal. Both statutes protect “employees” but not independent contractors. See Birchem, 116 F.3d at 312(ADA); Wilde v. County of Kandiyohi 15 F.3d 103, 104 (8th Cir.1994) (Title VII). II. The Relevant Legal Standard. The issue whether a person is an employee or an independent contractor arises in many legal contexts. When the issue concerns the scope of a federal statute, we must first examine the relevant statutory language. In both Title VII and the ADA, Congress adopted a circular definition of “employee” — an employee is an “individual employed by an employer.” See 42 U.S.C. §§ 2000e(f), 12111(4). In such cases, the Supreme Court applies the general common law of agency to determine whether a hired party is an employee or an independent contractor. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-25 & n. 3, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (ERISA), followed in Birchem, 116 F.3d at 312-13(ADA), and in Wilde, 15 F.3d at 105-06 (Title VII). In applying this test, the Court has instructed us to consider a nonexhaustive list of factors derived primarily from the Restatement (Second) of Agency § 220(2) (1958): In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of" }, { "docid": "23703936", "title": "", "text": "payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.... No one of these factors is determinative. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (footnotes omitted). In weighing these factors, “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Darden, 503 U.S. at 324, 112 S.Ct. 1344 (quotation omitted); see Hunt v. Missouri, 297 F.3d 735, 741 (8th Cir.2002). The district court may properly consider economic aspects of the parties’ relationship. See Wilde, 15 F.3d at 106. “Our inquiry ... requires more than simply tallying factors on each side and selecting the winner on the basis of a point score.” Schwieger v. Farm Bureau Ins. Co. of Neb., 207 F.3d 480, 487 (8th Cir.2000). On appeal, Lerohl, Hanson, and the EEOC primarily argue that, in the EEOC’s words, “it is critical that ‘control’ be given primary consideration.” They then state the control issue in terms of individual Sinfonía concerts and conclude, not surprisingly, that Fishman as conductor “controlled” the rehearsals and concerts, and therefore all Sinfonía musicians are employees. We emphatically reject that approach. First, it is contrary to the Supreme Court’s repeated admonition that no factor is determinative and all aspects of the parties’ relationship must be considered. See Darden, 503 U.S. at 325-26, 112 S.Ct. 1344 (expressly rejecting a similar contention by the United States as amicus curiae); Reid, 490 U.S. at 750-51, 109 S.Ct. 2166. Second, on a more practical level, the notion that musicians are always employees when they perform in a conducted band or orchestra flies in the face of both common sense and undisputed facts in this record, such as plaintiff Hanson’s affidavit reciting that she is not an employer when she hires musicians to play while she records a musical composition. Work by independent contractors is often, if not typically, performed" }, { "docid": "12211878", "title": "", "text": "does not helpfully define it, the common law agency test should be applied.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); see also O’Connor v. Davis, 126 F.3d 112, 115 (2d Cir.1997). Because Title VII contains only a circular definition of “employee,” O’Connor, 126 F.3d at 115; Stetka, 859 F.Supp. at 666, we look to common law agency principles to determine whether Tagare was an employee or independent contractor. In Community for Creative Non-Violence v. Reid, the Supreme Court set out the following factors relevant to this inquiry: (I) the tax treatment of the hired party; (3) the skill required; (4) the hiring party’s right to control the manner and means by which the product is accomplished; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the source of the instrumentalities and tools; (7) the location of the work; (8) the duration of the relationship between the parties; (9) the extent of the hired party’s discretion over when and how long to work; (10) the method of payment; (II) the hired party’s role in hiring and paying assistants; (12) whether the work is part of the regular business of the hiring party; and (13) whether the hiring party is a business. 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). No one of these factors is determinative. Id. at 752. Indeed, recognizing that not all factors are equally important or have relevance in every case, the Second Circuit has adopted a weighted approach in applying the Reid test. Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir.1992); Langman Fabrics v. Samsung America, Inc., 967 F.Supp. 131, 133 (S.D.N.Y.1997). The Aymes Court identified the first five factors listed above as “factors that will be significant in virtually every situation.” 980 F.2d at 861. Additionally, although an individual's employment status is not determined solely by the label used in the hiring contract, Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 232 (2d Cir.1995), courts within the Second Circuit have considered contractual language as" }, { "docid": "12242107", "title": "", "text": "turns to whether Plaintiff has alleged a factual basis to show that Monarch should be liable for Spence’s alleged harassment. To establish that the defendant is her employer, a plaintiff must show, that the defendant meets the statutory definition of employer, and that an employer-employee relationship existed between herself and the defendant. See Garrett v. Phillips Mills, Inc., 721 F.2d 979, 980 (4th Cir.1983) (interpreting Age Discrimination in Employment Act (“ADEA”), in which the operative language is identical to the operative language in Section 703(a)(1) of Title VII, to mean that an “individual” only has a cause of action under the ADEA if he is an employee of the defendant); Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir.1993) (applying Garrett analysis to determine whether plaintiff was an employee or independent contractor in Title VII action). In determining whether an employer-employee relationship is present under Title VII, the Fourth Circuit has recently directed that courts are to be guided by “ ‘the conventional master-servant relationship as understood by common-law agency doctrine.’ ” Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 259 (4th Cir.1997) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (adopting a common law test for who qualifies as an employee under ERISA)). The Cilecek court explained, “In order to establish a uniform nationwide application of the terms ‘employer,’ ‘employee,’ and ‘scope of employment’ for the purposes of applying federal statutes [where Congress has left those terms largely undefined] [the Supreme Court] instructs that we rely on ‘the general common law of. agency____’” Cilecek, 115 F.3d at 259-60 (emphasis added by Cilecek) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740-41, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)). The Supreme Court has noted that it looks to.such sources as the Restatement of Agency to determine the common law of agency. See Reid, 490 U.S. at 752 n. 31. Monarch does not dispute that it falls within definition of employer, but instead contends that it cannot be liable because Plaintiff was not" }, { "docid": "5862408", "title": "", "text": "not invoke these protections or dispute that he must demonstrate an employment relationship to prevail on his state-law claim. 2. The Enterprise test versus the Darden test The parties dispute the appropriate test for an employment relationship. Faush argues that the test for “joint employers” articulated in In re Enterprise Rent-A-Car Wage & Hour Emp’t Practices Litig., 683 F.3d 462 (3d Cir.2012), should apply in this context. Tuesday Morning argues that the test announced in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), applies instead. Both parties contend that they win regardless of which multi-factor test applies, and the two tests are indeed quite similar. As a doctrinal matter, however, it is clear that the Darden test applies to Title VII cases, while the Enterprise test does not. In Darden, the Supreme Court was called upon to construe the term “employee” in the Employee Retirement Income Security Act (“ERISA”). Because the definition of “employee” in ERISA “is completely circular and explains nothing,” Darden, 503 U.S. at 323, 112 S.Ct. 1344, the Court concluded, as it had in similar situations, “ ‘that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine,’ ” id. at 322-23, 112 S.Ct. 1344 (quoting Cmty. for Creative Norn-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)). Because Title VII’s definition of “employee” is similarly devoid of content, the common-law test outlined in Darden governs in the Title VII context as well. See Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 211-12, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997); Covington, 710 F.3d at 119; Brown, 581 F.3d at 180. The Enterprise test, by contrast, applies “[w]hen determining whether someone is an employee under the [Fair Labor Standards Act (“FLSA”)].” Enterprise, 683 F.3d at 467. The definition of “employee” in the FLSA is of “striking breadth” and “cover[s] some parties who might not qualify as such under a strict application of traditional agency law principles.” Dar-den, 503 U.S. at 326, 112 S.Ct. 1344. Accordingly, the “textual asymmetry” between Title" } ]

[ { "docid": "23326617", "title": "", "text": "removal within thirty days of service on them. Thus, the District Court’s decision to deny remand to the state court is affirmed. II. In the event we affirm the District Court on the question of removal (which we now have done), Maraño asks us to reverse the court’s decision to dismiss for improper venue. The District Court held that clauses within the franchise and development agreements requiring that actions on those agreements be brought in a court in Denver, Colorado, were enforceable, and therefore dismissed the case. “[A] forum selection clause is enforceable unless it is invalid or enforcement would be unreasonable and unjust.” Dominium Austin Partners v. Emerson, 248 F.3d 720, 726 (8th Cir.2001). Marano advances three reasons why we should hold that the District Court abused its discretion in holding that the clauses are enforceable. See Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir.) (standard of review), cert. denied, 522 U.S. 1029, 118 S.Ct. 629,139 L.Ed.2d 609 (1997). First, Maraño contends that the claim of fraud raised in its lawsuit encompasses a claim that it was induced by fraud to agree to the forum-selection clauses. A “forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). Marano’s complaint does not even remotely suggest that the clauses were inserted into the agreements as the result of fraud, and the brief on appeal offers no specifics concerning what the fraud might have been or how it was perpetrated. The general allegation by Maraño that it was induced by fraud to enter into the franchise and development agreements is insufficient to raise an issue that the forum-selection clauses within those agreements may be unenforceable because of fraud, and so Marano’s argument must fail. Maraño also argues that, because plaintiff Leon Maraño and three of the defendants are not parties to the agreements wherein the clauses are found, they should not be bound by them. The" } ]

[ { "docid": "5368076", "title": "", "text": "the extent necessary to allow Summit to enforce the venue and jurisdictional requirement of the subcontract between Summit and Serve-well. Jt.App. 48. . In Sun World Lines, 801 F.2d at 1069, we held that the question of the enforceability of a forum selection clause is procedural for Erie purposes and applied federal law. Shortly thereafter, in Farmland Indus., Inc. v. Frazier-Parrott Commodities Inc., 806 F.2d 848, 852 (8th Cir.1986), abrogated on other grounds, Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989), a different panel of this court considered Missouri public policy in determining enforceability, but ultimately reserved the “difficult question” of \"[w]hether a contractual forum-selection clause is substantive or procedural.” . Indeed, Bremen explicitly rejected mere inconvenience as a reason for avoiding enforcement of a bargained-for forum selection clause, reasoning that the parties contemplated such inconvenience when they entered into their agreement. 407 U.S. at 17-18, 92 S.Ct. 1907. . Because we conclude that the general venue provision is inapplicable to Servewell's claim, we express no opinion as to whether it or any other provision of the Arkansas Insurance Code could qualify as a \"strong public policy\" under Bremen. See, e.g., Interamerican Trade Corp. v. Companhia Fabricadora De Pecas, 973 F.2d 487, 490 (6th Cir. 1992) (enforcing forum selection clause notwithstanding Ohio policy of protecting local businesses from victimization by nonresident businesses for failure to pay commissions); Lien Ho Hsing Steel Enter. Co. v. Weihtag, 738 F.2d 1455, 1460 (9th Cir. 1984) (holding that \"statute defining the limits of Hawaiian courts' jurisdiction does not, in itself, express a 'strong policy' that insurance cases must be tried locally despite a clause in the insurance contract to the contrary\"). . Although Federal asks us to modify the dismissal from one without prejudice to one with prejudice, it cites no authority in support of its request. We therefore will not indulge its request." }, { "docid": "5368065", "title": "", "text": "S.W.2d 314, 316-17 (1991); Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986), and neither party argues that the application of one or another body of law would materially affect the outcome. See M.B. Restaurants, 183 F.3d at 752 (avoiding Erie question and applying federal law to determine enforceability of forum selection clause where parties did not argue federal and state standards differed). Thus, for purposes of this appeal, we apply the standard announced in Bremen and adopted by the highest courts of Florida and Arkansas, while considering state substantive law when called for under that standard. See Farmland Indus., 806 F.2d at 852. Under Bremen, “[f]orum selection clauses are prima facie valid and are enforced unless they are unjust or unreasonable or invalid.” M.B. Restaurants, 183 F.3d at 752 (citing Bremen, 407 U.S. at 15, 92 S.Ct. 1907); Nelms, 808 S.W.2d at 316-17; Manrique, 498 So.2d at 440. Where, as here, the forum selection clause is the fruit of an arm’s-length negotiation, the party challenging the clause bears an especially “heavy burden of proof’ to avoid its bargain. Bremen, 407 U.S. at 17, 92 S.Ct. 1907. Only “some compelling and countervailing reason” will excuse enforcement of a bargained-for forum selection clause. Id. at 12, 92 S.Ct. 1907; accord Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Servewell does not suggest that the forum selection clause in the subcontract was the product of fraud or overreaching; instead, it focuses on the supposed unreasonableness and injustice of requiring it to litigate its claim against Federal in Florida. Servewell first argues that the forum selection clause is unreasonable and unjust because Servewell lacks “minimum contacts” with Florida, and therefore Florida lacks personal jurisdiction over it. This argument is wholly without merit. “In judging minimum contacts” the focus is “on ‘the relationship among the defendant, the forum, and the litigation,’ ” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)) (emphasis added). Servewell," }, { "docid": "22805025", "title": "", "text": "whether state or federal law applies to forum selection clauses. In Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066 (8th Cir.1986), one panel of the Eighth Circuit concluded in dicta that forum selection clauses involve venue issues and are therefore procedural clauses governed by federal law. Id. at 1068-69. Shortly thereafter, another panel of the Eighth Circuit distinguished Sun World, explamtegrthat It-in. volved admiralty law, to which federal common law always applies. Farmland Indus., Inc. v. Frazier-Parrott Commodities, Inc., 806 F.2d 848, 852 (8th Cir.1986). The Farmland court observed that \"[wjhether a contractual forum clause is substantive or procedural is a difficult question. On the one hand the clause determines venue and can be considered procedural, but on the other, choice of forum is an important contractual right of the parties.” Id. On balance, the Farmland court-opted to appJv-state law to the forum clause, following the-Third Circuit’s General Engineering decision. Id. . Although Mediterranean involved interpretation of the scope of an arbitration clause, we apply its analysis here because an agreement to arbitrate is actually a specialized forum selection clause. See Scherk, 417 U.S. at 519, 94 S.Ct. at 2457. . Manetti-Farrow argues the forum selection clause can only apply to Gucci Parfums, which was the only defendant to sign the contract. However, \"a range of transaction participants, parties and non-parties, should henf.fitJxom and be subject to forum selection clauses.” Clinton v. Janger, 583 F.Supp. 284, 290 (N.D.Ill.1984) (citing Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 202-03 (3d Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983)). We agree with the district court j that the alleged conduct of the .nomaarties is so closely related to the contractual relationship j that the forum selection clause applies to all] defendants." }, { "docid": "5368075", "title": "", "text": "paragraph 3(c) of the Bond, the parties agreed that no suit or action shall be commenced by any claimant other than in a state court of competent jurisdiction in and for the county or other political subdivision of the state in which the Project, or any part thereof, is situated, or in the United States District Court for the district in which the Project, or any part thereof, is situated, and not elsewhere. Servewell Plumbing, LLC (“ServeweH”) was a subcontractor to Summit on the Project though Servewell's contract was terminated prior to completion of the Project. Summit is presently a defendant in an action brought by Servewell pending in the Circuit Court of Pulaski County, Arkansas .... However, under the terms of their subcontractor agreement, Summit and Servewell agreed that venue and jurisdiction for any claim brought against Summit or against the Bond would be in Duval County, Florida. For good and valuable consideration, Summit and Federal Insurance Company hereby agree to waive the Venue and jurisdictional requirements of paragraph 3(c) of the Bond to the extent necessary to allow Summit to enforce the venue and jurisdictional requirement of the subcontract between Summit and Serve-well. Jt.App. 48. . In Sun World Lines, 801 F.2d at 1069, we held that the question of the enforceability of a forum selection clause is procedural for Erie purposes and applied federal law. Shortly thereafter, in Farmland Indus., Inc. v. Frazier-Parrott Commodities Inc., 806 F.2d 848, 852 (8th Cir.1986), abrogated on other grounds, Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989), a different panel of this court considered Missouri public policy in determining enforceability, but ultimately reserved the “difficult question” of \"[w]hether a contractual forum-selection clause is substantive or procedural.” . Indeed, Bremen explicitly rejected mere inconvenience as a reason for avoiding enforcement of a bargained-for forum selection clause, reasoning that the parties contemplated such inconvenience when they entered into their agreement. 407 U.S. at 17-18, 92 S.Ct. 1907. . Because we conclude that the general venue provision is inapplicable to Servewell's claim, we express no opinion as" }, { "docid": "5368067", "title": "", "text": "the party objecting to Florida’s exercise of personal jurisdiction, is the plaintiff in this case, not the defendant. The Supreme Court does not require a plaintiff like Servewell, to have minimum contacts with the forum State before permitting that State to assert personal jurisdiction over a nonresident defendant and has “upheld the assertion of jurisdiction where such contacts were entirely lacking.” Id. at 779, 104 5.Ct. 1473. Because Servewell’s contacts with Florida do not dictate whether Florida may exercise personal jurisdiction over Federal, Servewell’s personal jurisdiction argument cannot render the agreed-to forum selection clause unenforceable. Next, Servewell argues that the forum selection clause is unreasonable and unjust because litigation in Florida would be inconvenient. Following Bremen, we have held that mere “inconvenience to a party is an insufficient basis to defeat an otherwise enforceable forum selection clause.” M.B. Restaurants, 183 F.3d at 753. Instead, a party seeking to avoid his promise must demonstrate that proceeding in “the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Dominium Austin Partners., LLC v. Emerson, 248 F.3d 720, 727 (8th Cir.2001) (quoting Bremen, 407 U.S. at 18, 92 S.Ct. 1907). The “great expense” Servewell claims it will incur if forced to secure witnesses located in Arkansas for litigation in Florida, falls well short of depriving it of its day in court. Compare McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 345-46 (8th Cir.1985) (holding chaotic post-revolutionary conditions in Iran, including its ongoing war with Iraq, excused enforcement of clause requiring litigation there) with M.B. Restaurants, 183 F.3d at 753 (enforcing forum selection clause requiring litigation in Utah over plaintiffs objection that he could not afford to litigate there); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 303-04 (5th Cir.1998) (enforcing Peruvian forum selection clause against financially destitute family of deceased security guard); Sun World Lines, 801 F.2d at 1068 (reasoning that the “alternative of using depositions of key witnesses provides adequate opportunity for [plaintiffs] to have their fair day in court” in enforcing forum selection clause" }, { "docid": "5368068", "title": "", "text": "of his day in court.” Dominium Austin Partners., LLC v. Emerson, 248 F.3d 720, 727 (8th Cir.2001) (quoting Bremen, 407 U.S. at 18, 92 S.Ct. 1907). The “great expense” Servewell claims it will incur if forced to secure witnesses located in Arkansas for litigation in Florida, falls well short of depriving it of its day in court. Compare McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 345-46 (8th Cir.1985) (holding chaotic post-revolutionary conditions in Iran, including its ongoing war with Iraq, excused enforcement of clause requiring litigation there) with M.B. Restaurants, 183 F.3d at 753 (enforcing forum selection clause requiring litigation in Utah over plaintiffs objection that he could not afford to litigate there); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 303-04 (5th Cir.1998) (enforcing Peruvian forum selection clause against financially destitute family of deceased security guard); Sun World Lines, 801 F.2d at 1068 (reasoning that the “alternative of using depositions of key witnesses provides adequate opportunity for [plaintiffs] to have their fair day in court” in enforcing forum selection clause requiring Missouri company to litigate in Germany). Thus, there is no basis for concluding that any inconvenience to Servewell would make it unfair, unjust, or unreasonable to hold it to its bargain. Finally, Servewell argues that the forum selection clause is unreasonable and unjust because it is contrary to Arkansas public policy. Under Bremen, a forum selection clause may be set aside if “enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” Id. at 15, 92 S.Ct. 1907. Servewell points to two areas of Arkansas law that it contends embody the state’s “strong public policies.” We address each argument in turn. First, Servewell argues that the forum selection clause is contrary to Arkansas law requiring that an in rem action to enforce a materialmen’s lien be brought in the county where the construction project is located. In support of this argument, Servewell quotes extensively from a recent case of the Arkansas Supreme Court invalidating a forum selection clause that pur ported" }, { "docid": "19755715", "title": "", "text": "on the forum selection clause from the stock purchase agreement, moved to dismiss Dunne’s diversity action based on lack of personal jurisdiction and/or improper venue. The forum selection clause provides, “[t]his agreement shall be governed by and construed and enforced in accordance with the laws of the State of Illinois, and the parties consent to jurisdiction to [sic] the state courts of the State of Illinois.” The only issue on appeal is a legal issue of contract construction, namely, whether the forum selection clause is mandatory such that an action on the contract may be maintained only in Illinois state court, or whether the clause is merely permissive such that an action on the contract may be maintained in other reasonably convenient forums where personal jurisdiction exists. Our review on this legal issue of contract construction is de novo. Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 692 (8th Cir.1997). The district court found the forum selection clause ambiguous, neither clearly permissive nor clearly mandatory. Applying the general principle of contract construction that no provision of a contract should be interpreted in a manner that would render it surplusage, the district court concluded that, because personal jurisdiction in Illinois existed even without the forum selection clause, treatment of the forum selection clause as merely permissive would render the forum selection clause wholly redundant and therefore mere sur-plusage. Accordingly, the district court held the forum selection clause mandatory rather than permissive. We disagree. As an initial matter, we note that neither forum is inconvenient for either party. In addition, we assume for the purpose of this decision that Missouri and Illinois enjoy personal jurisdiction over the parties even without the forum selection clause. Lib-bra is an Illinois resident. Libbra maintained extensive contacts within the state of Missouri related to the formation and performance of the contract. Libbra repeatedly met with Dunne in Missouri and repeatedly directed communications to Dunne in Missouri. Further, the contract at issue involved the sale of a fifty-one percent ownership interest in a construction firm that was formed under Delaware law, headquartered in Illinois, and" }, { "docid": "5368062", "title": "", "text": "against Federal as surety on Summit’s bond for the $123,342.37 Summit allegedly owed to Servewell. Although like the subcontract, the bond document contained a forum selection clause, this forum selection clause provided for venue and jurisdiction in the county where the project was located, i.e., Pulaski County, Arkansas. How ever, on June 16, 2003, during the course of the Pulaski County litigation between Servewell and Summit, Federal and Summit agreed for valuable consideration to waive the venue and jurisdictional requirement of the bond to the extent necessary to permit Summit to enforce the forum selection clause in its subcontract with Servewell. After removing the matter to the United States District Court for the Eastern District of Arkansas, Federal moved to dismiss for improper venue, relying on the forum selection clause in the subcontract between Servewell and Summit. The district court granted Federal’s motion, rejecting Servewell’s arguments that the forum selection clause in the subcontract was unenforceable. In doing so, the court reasoned that the clause was fair and reasonable since “Servewell freely entered into a contract with Summit providing that any dispute would be litigated in Duval County, Florida, despite the fact that the Project was in Arkansas. Servewell, thus,could anticipate having to litigate in Florida.” Following the district court’s dismissal of its claim- without prejudice, Servewell filed a timely notice of appeal. The parties do not dispute the meaning, scope, or applicability of the forum selection clause in the subcontract, all of which would be questions of contract interpretation that we would review de novo. See e.g., Rainforest Cafe, Inc. v. EklecCo, LLC, 340 F.3d 544, 546 (8th Cir. 2003); Dunne v. Libbra, 330 F.3d 1062, 1063 (8th Cir.2003). Instead, the parties’ disagreement centers, on whether the district court should have enforced the agreed-to clause, a decision we review for an abuse of discretion. See, e.g., Marano Enter. of Kan. v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir.2001); M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 753 (8th Cir. 1999); see also Terra Int'l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691-92 (8th Cir.1997)" }, { "docid": "2793235", "title": "", "text": "Franchisees have not alleged that the Utah court is biased or incompetent or unwilling to apply South Dakota law if applicable. Instead, they rely primarily on Rogers’ assertion that he could not afford to litigate in Utah. We note that Rogers is the only named plaintiff who resides in South Dakota, and the other two live in Idaho. Furthermore, inconvenience to a party is an insufficient basis to defeat an otherwise enforceable forum selection clause. See, e.g., Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068 (8th Cir.1986) (clause upheld requiring Missouri company to litigate in Germany). The allegations of the Franchisor are thus insufficient to overcome the presumption of validity, and the district court did not abuse its discretion in dismissing the case. The judgment is therefore affirmed. . The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. . Sometime after the franchise agreements were entered into, JB's was converted to Summit Family Restaurants, Inc., which was then bought by CKE Restaurants, Inc.(CKE) CKE has numerous restaurant franchise chains, including JB’s, Hardees, and Carl Jr.'s. CKE is not a named party in the related litigation in Utah which was brought by JB's Family Restaurants, Inc. To avoid confusion we refer to the parties as Franchisor and Franchisees. . As the district court noted, both the Eleventh and Second Circuits have determined that interpreting a forum selection clause is a procedural question to be decided under federal law, Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990); Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066, 1068 (11th Cir.1987) (en banc) (per curiam), aff’d on other grounds, 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), while the Third Circuit has held that it is a substantive legal question governed by state law. General Engineering Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 356-57 (3rd Cir.1986). The Eight Circuit does not yet appear to have established a definitive position. See Farmland Industries, Inc. v. Frazier-Parrott Commodities Inc., 806 F.2d 848 (8th Cir.1986)." }, { "docid": "22255565", "title": "", "text": "the courts of appeals involving these choice clauses, “[t]his appeal does not address the merits of the underlying claims. It addresses only the Names’ contention that their disputes with Lloyd’s should be litigated in the United States despite contract clauses binding the parties to proceed in England under English law.” Richards v. Lloyd’s of London, 135 F.3d 1289, 1292 (9th Cir.1998). II. As a preliminary matter, we note that some uncertainty exists as to both the appropriate vehicle for motions to dismiss on the basis of forum-selection clauses and the proper standard of review for district court decisions granting such motions to dismiss. See Haynsworth v. Lloyd’s of London, 121 F.3d 956, 961 & n.8 (5th Cir.1997) (citing cases); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1352 (2d ed. Supp. 1998). In the case before us, Lloyd’s styled its motion as a Rule 12(b)(3) motion to dismiss for improper venue. See Fed.R.Civ.P. 12(b)(3). The Ninth Circuit has treated such motions as motions brought pursuant to Fed. R.Civ.P. 12(b)(3) to dismiss for lack of venue, see Richards v. Lloyd’s of London, 135 F.3d 1289, 1292 (9th Cir.1998); cf. Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 207 (7th Cir.1993) (affirming district court’s grant of defendant’s Rule 12(b)(3) motion to dismiss for improper venue in case involving forum-selection clause); Commerce Consultants Int’l v. Vetrerie Riunite, 867 F.2d 697, 698 (D.C.Cir.1989) (same), and has reviewed district court decisions to enforce forum-selection and choice-of-law clauses for abuse of discretion, see id.; accord Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068 & n.3 (8th Cir.1986). The Second Circuit, on the other hand, has treated such motions as motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). See AVC Nederland B.V. v. Atrium Inv. Partnership, 740 F.2d 148, 153 & n.8 (2d Cir.1984). Finally, several circuits have avoided resolving the issue of the appropriate form of pleading for a motion to dismiss based upon choice clauses and instead have held simply that “the enforceability of a forum selection clause is a question of" }, { "docid": "2793234", "title": "", "text": "validity does not attach to the forum clause in these agreements because it is invalid for fraud and because it would deny them a fair opportunity to present their claims. Franchisees only allege a belief that the contracts were procured by fraud, however, and they have not alleged that the forum selection clause was itself a product of fraud. Fraud must be pled with particularity, see Fed.R.Civ.P. 9(b), and they have not alleged facts to support their statements that Franchisor misrepresented the potential profitability of the franchises and the expected increase in the number of JB’s franchises, that Franchisor was not telling the truth when it told Rogers another buyer was interested in the store, or that the alleged forgery of Trapper’s signature on unspecified documents is in some way tied to the validity of the franchise agreement itself. The fact that the contract was a form contract and that the individual clauses were not actually negotiated does not render the clause per se unenforceable. Carnival Cruise Lines, 499 U.S. at 593, 111 S.Ct. 1522. Franchisees have not alleged that the Utah court is biased or incompetent or unwilling to apply South Dakota law if applicable. Instead, they rely primarily on Rogers’ assertion that he could not afford to litigate in Utah. We note that Rogers is the only named plaintiff who resides in South Dakota, and the other two live in Idaho. Furthermore, inconvenience to a party is an insufficient basis to defeat an otherwise enforceable forum selection clause. See, e.g., Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068 (8th Cir.1986) (clause upheld requiring Missouri company to litigate in Germany). The allegations of the Franchisor are thus insufficient to overcome the presumption of validity, and the district court did not abuse its discretion in dismissing the case. The judgment is therefore affirmed. . The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. . Sometime after the franchise agreements were entered into, JB's was converted to Summit Family Restaurants, Inc., which was then bought by CKE Restaurants, Inc.(CKE) CKE has" }, { "docid": "22255566", "title": "", "text": "dismiss for lack of venue, see Richards v. Lloyd’s of London, 135 F.3d 1289, 1292 (9th Cir.1998); cf. Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 207 (7th Cir.1993) (affirming district court’s grant of defendant’s Rule 12(b)(3) motion to dismiss for improper venue in case involving forum-selection clause); Commerce Consultants Int’l v. Vetrerie Riunite, 867 F.2d 697, 698 (D.C.Cir.1989) (same), and has reviewed district court decisions to enforce forum-selection and choice-of-law clauses for abuse of discretion, see id.; accord Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068 & n.3 (8th Cir.1986). The Second Circuit, on the other hand, has treated such motions as motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). See AVC Nederland B.V. v. Atrium Inv. Partnership, 740 F.2d 148, 153 & n.8 (2d Cir.1984). Finally, several circuits have avoided resolving the issue of the appropriate form of pleading for a motion to dismiss based upon choice clauses and instead have held simply that “the enforceability of a forum selection clause is a question of law reviewable de novo.” Haynsworth, 121 F.3d at 961; see id. (electing not to reach “the considerably more enigmatic question of whether motions to dismiss on the basis of forum selection clauses are properly brought as motions under Fed.R.Civ.P. 12(b)(1), 12(b)(3), or 12(b)(6), or 28 U.S.C. § 1406(a)”); Shell v. R.W. Sturge, Ltd., 55 F.3d 1227, 1229 (6th Cir.1995); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 956 (10th Cir.1992) (noting that “[a] motion to dismiss based on a forum selection clause frequently is analyzed as a motion to dismiss for improper venue under Fed.R.Civ.P. 12(b)(3),” but failing to resolve issue). In our view, motions to dismiss based upon forum-selection clauses ordinarily are not properly brought pursuant to Rule 12(b)(1), which permits motions to dismiss for lack of subject matter jurisdiction, because the basis upon which the. defendants seek dismissal — namely, that the agreement of the parties prohibits the plaintiff from bringing suit in the particular forum — is unrelated to the actual basis of federal subject matter jurisdiction — namely, federal question" }, { "docid": "22819239", "title": "", "text": "equation. Consequently, MCC believes that the abuse of discretion standard, which applies to the district court’s overall balancing of various factors, also applies to the court’s specific treatment of the forum selection clause. In Sun World Lines v. March Shipping Corp., 801 F.2d 1066, 1068 n. 3 (8th Cir.1986), this court, following the Ninth Cir cuit’s approach, reviewed for an abuse of discretion a district court’s “enforcement” of a forum selection clause. The dispute in Sun World, however, concerned the validity of the forum selection clause. Id. at 1067. In the case at hand, neither party challenges the validity of the forum selection clause; rather, they contest the specific meaning of the language used in the forum selection clause, which was not an issue in Sun World. The Ninth Circuit itself has refined its approach and has explained that it employs de novo review when a district court is required to interpret the language of a forum selection clause. Northern Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1036 n. 3 (9th Cir.1995). Here, interpreting the language of the forum selection clause is necessary to the section 1404(a) transfer analysis. Before a district court can even consider a forum selection clause in its transfer analysis, it first must decide whether the clause applies to the type of claims asserted in the lawsuit. Following the Ninth Circuit’s approach, as well as our own standard of review in cases of contract interpretation, see United States v. Brekke, 97 F.3d 1043, 1049 (8th Cir.1996) (applying de novo review to district court’s construction of a contract), we conclude that de novo review is the appropriate standard for reviewing a district court’s interpretation of the specific terms contained in a forum selection clause. See Jumara, 55 F.3d at 880-81; Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 207 (7th Cir.1993); Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342, 1345 (10th Cir.1992). A. Terra claims that the forum selection clause in the license agreement does not apply to its tort claims and therefore should not receive any consideration in the" }, { "docid": "7493248", "title": "", "text": "district court determined Minnesota was not the appropriate venue for this action pursuant to 28 U.S.C. § 1391. Rainforest does not argue that the lower court erred generally in its analysis under § 1391, but instead limits its argument to the applicability of the forum selection clause in the lease. Thus, “[t]he only issue on appeal is a legal issue of contract construction,” Dunne v. Libbra, 330 F.3d 1062, 1063 (8th Cir.2003), which we review de novo, Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691-92 (8th Cir.1997). In this case, both parties operate under the assumption that federal law controls the question of whether this forum selection clause applies. We are inclined to agree, see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31-32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (holding that in diversity cases, federal law governs determination of what effect to give forum selection clause in contract), but acknowledge that this appears to be an open question, see M.B. Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750, 752 n. 4 (8th Cir.1999) (noting circuit split on issue of whether interpretation of forum selection clauses in diversity cases is substantive or procedural issue and leaving matter undecided in Eighth Circuit); see also Excell, Inc. v. Sterling Boiler & Mech., Inc., 106 F.3d 318, 320-21 (10th Cir.1997) (leaving open the question of whether state or federal law controls validity and interpretation of forum selection clauses). Because the parties have not argued that state law would result in a materially different outcome, we indulge their suggestion that we interpret the forum selection clause under federal law. Accord M.B. Rests., Inc., 183 F.3d at 752. Rainforest, through its subsidiary Lightning, entered into a lease that contains a mandatory forum selection clause. The clause requires that “any dispute concerning the application or any interpretation of any portion of the Lease or the conduct of the parties shall be brought in the New York Supreme Court, Onondaga County.” (Appellee’s App. at 47 (emphasis added).) Rainforest asserts that this declaratory judgment action is not about the lease, nor about" }, { "docid": "9624075", "title": "", "text": "Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). . Farmland Industries is a recession from the Eighth's Circuits earlier holding in Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068-69 (8th Cir.1986), in which the court determined that forum selection clauses should be enforced according to fed eral law: \"[Vjiewing this as a diversity case, state law binds us only on substantive issues. Otherwise, federal law controls under the Erie doctrine. The enforceability of a forum selection clause concerns both the substantive law of contract and the procedural law of venue... .Faced with the conflict, federal district courts in Missouri have consistently held that the enforceability of a forum clause (venue limitation) is clearly a federal procedural issue and that federal law controls (citations omitted). In affirming the position of the Missouri district court that forum selection is a procedural matter, we support a policy of uniformity of venue rules within the federal system, as well as the policies underlying The BREMEN.\" The Farmland court found, however, that this holding was not essential to the outcome because the Sun World court had already determined admiralty law was at issue; therefore, under federal common law, the forum selection clause was valid. 806 F.2d at 852. . Like the Tenth Circuit, the First Circuit has chosen not to undertake the complex Erie analysis because, in cases thus far before the court, the law of the selected forum has not materially differed from federal common law. See Silva v. Encyclopedia Britannica Inc., 239 F.3d 385, 386-87 (1st Cir.2001); Lambert v. Kysar, 983 F.2d 1110, 1116 (1st Cir.1993). But see Stereo Gema, Inc. v. Magnadyne Corp., 941 F.Supp. 271 (D.P.R.1996) (holding that enforceability of forum selection clauses is a procedural issue governed by federal law). . Cf. John Boutari and Son, Wines and Spirits, S.A. v. Attiki Importers and Distributors Inc., 22 F.3d 51, 52-53 (2d Cir.1994) (forum selection clause stating ''[a]ny dispute.. .shall come within the jurisdiction of the competent Greek courts, specifically of the Thessaloniki Courts” permissive); Caldas & Sons, Inc. v. Willingham, 17 F.3d 123," }, { "docid": "19755714", "title": "", "text": "MELLOY, Circuit Judge. Dunne appeals the district court’s dismissal of his diversity action under a contract’s forum selection clause. We reverse. In the fall of 2000, Libbra and his attorney solicited Dunne in Missouri to discuss Dunne’s possible purchase of Libbra’s fifty-one percent ownership interest in Prai-rieland Construction, Inc., a Delaware Corporation with its headquarters in Illinois. Communication, meetings, and due diligence reviews concerning the possible purchase continued through the fall of 2001, at which túne the parties executed a series of documents to consummate the sale. One of the documents, a stock purchase agreement, contained a forum selection clause that lies at the center of the present dispute. Over the course of the next year, Dunne fell behind in his payments to Libbra. Eventually, Libbra sent Dunne a default notice. Dunne responded by filing the present diversity action alleging misrepresentation and seeking a declaratory judgment, permanent injunction, and damages. Libbra, in turn, filed an action in Illinois state court alleging that Dunne breached each of the separate contracts related to the sale. Libbra, relying on the forum selection clause from the stock purchase agreement, moved to dismiss Dunne’s diversity action based on lack of personal jurisdiction and/or improper venue. The forum selection clause provides, “[t]his agreement shall be governed by and construed and enforced in accordance with the laws of the State of Illinois, and the parties consent to jurisdiction to [sic] the state courts of the State of Illinois.” The only issue on appeal is a legal issue of contract construction, namely, whether the forum selection clause is mandatory such that an action on the contract may be maintained only in Illinois state court, or whether the clause is merely permissive such that an action on the contract may be maintained in other reasonably convenient forums where personal jurisdiction exists. Our review on this legal issue of contract construction is de novo. Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 692 (8th Cir.1997). The district court found the forum selection clause ambiguous, neither clearly permissive nor clearly mandatory. Applying the general principle of contract construction that" }, { "docid": "7493247", "title": "", "text": "of State, contending that it had mistakenly merged Lightning into Mist, and seeking to correct the matter by deleting reference to Lightning in its 1998 merger documents. Once the Secretary of State certified Rainforest’s Articles of Correction, Rainforest instituted this declaratory judgment action in Minnesota state court, naming EklecCo as the sole defendant. For relief, Rainforest requested “[a] declaration that Rainforest is not the successor by merger to the liabilities and obligations of Lightning including those arising from the lease with EklecCo.” (Appellant’s App. at 107.) EklecCo moved to dismiss based on improper venue. The matter was referred to a magistrate who recommended that EklecCo’s motion be granted because the case was essentially about the obligations of the parties under a lease for New York property. The magistrate also recognized that the lease stated the proper forum for lease disputes or issues concerning the conduct of the parties was Onondaga County, New York. The district court adopted the magistrate’s report and recommendation and dismissed the suit. This appeal followed. ANALYSIS Both the magistrate and the district court determined Minnesota was not the appropriate venue for this action pursuant to 28 U.S.C. § 1391. Rainforest does not argue that the lower court erred generally in its analysis under § 1391, but instead limits its argument to the applicability of the forum selection clause in the lease. Thus, “[t]he only issue on appeal is a legal issue of contract construction,” Dunne v. Libbra, 330 F.3d 1062, 1063 (8th Cir.2003), which we review de novo, Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691-92 (8th Cir.1997). In this case, both parties operate under the assumption that federal law controls the question of whether this forum selection clause applies. We are inclined to agree, see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31-32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (holding that in diversity cases, federal law governs determination of what effect to give forum selection clause in contract), but acknowledge that this appears to be an open question, see M.B. Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750," }, { "docid": "22819238", "title": "", "text": "clause in a contract is “a significant factor that figures centrally in the district court’s calculus.” Id. On appeal, Terra argues that the district court incorrectly found the forum selection clause applicable to its tort claims and improperly weighed the other section 1404(a) factors. Although the parties agree that we review a district court’s decision regarding a section 1404(a) transfer motion for an abuse of discretion, see Stewart, 487 U.S. at 29, 108 S.Ct. at 2243-44; Everett v. St. Ansgar Hosp., 974 F.2d 77, 79 (8th Cir.1992), they disagree over the appropriate standard of review regarding a district court’s construction of a forum selection clause. Terra argues that we should review the court’s interpretation of the forum selection clause de novo, because such an interpretation is equivalent to the construction of a contract which is a legal issue. MCC, however, asserts that in weighing the relevant section 1404(a) factors, the district court was not required to interpret the specific meaning of the forum selection clause but merely recognize its presence and factor it into the equation. Consequently, MCC believes that the abuse of discretion standard, which applies to the district court’s overall balancing of various factors, also applies to the court’s specific treatment of the forum selection clause. In Sun World Lines v. March Shipping Corp., 801 F.2d 1066, 1068 n. 3 (8th Cir.1986), this court, following the Ninth Cir cuit’s approach, reviewed for an abuse of discretion a district court’s “enforcement” of a forum selection clause. The dispute in Sun World, however, concerned the validity of the forum selection clause. Id. at 1067. In the case at hand, neither party challenges the validity of the forum selection clause; rather, they contest the specific meaning of the language used in the forum selection clause, which was not an issue in Sun World. The Ninth Circuit itself has refined its approach and has explained that it employs de novo review when a district court is required to interpret the language of a forum selection clause. Northern Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1036 n." }, { "docid": "5368063", "title": "", "text": "contract with Summit providing that any dispute would be litigated in Duval County, Florida, despite the fact that the Project was in Arkansas. Servewell, thus,could anticipate having to litigate in Florida.” Following the district court’s dismissal of its claim- without prejudice, Servewell filed a timely notice of appeal. The parties do not dispute the meaning, scope, or applicability of the forum selection clause in the subcontract, all of which would be questions of contract interpretation that we would review de novo. See e.g., Rainforest Cafe, Inc. v. EklecCo, LLC, 340 F.3d 544, 546 (8th Cir. 2003); Dunne v. Libbra, 330 F.3d 1062, 1063 (8th Cir.2003). Instead, the parties’ disagreement centers, on whether the district court should have enforced the agreed-to clause, a decision we review for an abuse of discretion. See, e.g., Marano Enter. of Kan. v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir.2001); M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 753 (8th Cir. 1999); see also Terra Int'l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691-92 (8th Cir.1997) (applying.de novo standard to district court’s construction of forum selection clause, but recognizing abuse of dis cretion standard for question of whether to enforce the clause). Initially we must address the question of whether to apply state or federal law in determining the enforceability of the clause. Because “the enforceability of a forum selection clause concerns both the substantive law of contracts and the procedural law of venue,” Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068-69 (8th Cir.1986), there is some disagreement among the circuits over whether state or federal law applies, see M.B. Restaurants, 183 F.3d at 752 n. 4 (collecting cases), and we have yet to adopt a definitive position on the issue. Id.; Rainforest Cafe, 340 F.3d at 546. Nor must we do so here, since both Arkansas and Florida follow the federal standard announced by the Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), see, e.g., Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808" }, { "docid": "5368064", "title": "", "text": "(applying.de novo standard to district court’s construction of forum selection clause, but recognizing abuse of dis cretion standard for question of whether to enforce the clause). Initially we must address the question of whether to apply state or federal law in determining the enforceability of the clause. Because “the enforceability of a forum selection clause concerns both the substantive law of contracts and the procedural law of venue,” Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068-69 (8th Cir.1986), there is some disagreement among the circuits over whether state or federal law applies, see M.B. Restaurants, 183 F.3d at 752 n. 4 (collecting cases), and we have yet to adopt a definitive position on the issue. Id.; Rainforest Cafe, 340 F.3d at 546. Nor must we do so here, since both Arkansas and Florida follow the federal standard announced by the Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), see, e.g., Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314, 316-17 (1991); Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986), and neither party argues that the application of one or another body of law would materially affect the outcome. See M.B. Restaurants, 183 F.3d at 752 (avoiding Erie question and applying federal law to determine enforceability of forum selection clause where parties did not argue federal and state standards differed). Thus, for purposes of this appeal, we apply the standard announced in Bremen and adopted by the highest courts of Florida and Arkansas, while considering state substantive law when called for under that standard. See Farmland Indus., 806 F.2d at 852. Under Bremen, “[f]orum selection clauses are prima facie valid and are enforced unless they are unjust or unreasonable or invalid.” M.B. Restaurants, 183 F.3d at 752 (citing Bremen, 407 U.S. at 15, 92 S.Ct. 1907); Nelms, 808 S.W.2d at 316-17; Manrique, 498 So.2d at 440. Where, as here, the forum selection clause is the fruit of an arm’s-length negotiation, the party challenging the clause bears an especially “heavy burden of proof’ to" } ]

[ { "docid": "22608683", "title": "", "text": "Justice Stevens delivered the opinion of the Court. Section 523(a) of the Bankruptcy Code provides that a discharge in bankruptcy shall not discharge an individual debtor from certain kinds of obligations, including those for money obtained by “actual fraud.” The question in this case is whether the statute requires a defrauded creditor to prove his claim by clear and convincing evidence in order to preserve it from discharge. Petitioners brought an action against respondent alleging that he had defrauded them in connection with the sale of certain corporate securities. App. 16-25. Following the trial court’s instructions that authorized a recovery based on the preponderance of the evidence, a jury returned a verdict in favor of petitioners and awarded them actual and punitive damages. Id., at 28-29. Respondent appealed from the judgment on the verdict, and, while his appeal was pending, he filed a petition for relief under Chapter 11 of the Bankruptcy Code, listing the fraud judgment as a dischargeable debt. The Court of Appeals for the Eighth Circuit reduced the damages award but affirmed 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" } ]

[ { "docid": "10719669", "title": "", "text": "refinancing of credit, to the extent obtained, by — (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider's financial condition.” 11 U.S.C. § 523(a)(2)(A). The plaintiff must establish that the debt is excepted from discharge by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In Blacksmith Invs., LLC v. Woodford (In re Woodford), 403 B.R. 177 (Bankr.D.Mass.2009), aff'd, 418 B.R. 644 (1st Cir. BAP 2009), this Court stated: The United States Court of Appeals for the First Circuit has addressed issues under section 523(a)(2)(A) on multiple occasions, observing that, as with all exceptions to discharge under section 523(a), they are \"narrowly construed ... and the claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” McCrory v. Spigel (In re Spigel), 260 F.3d 27, 32 (1st Cir.2001) (citing Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994)). In Spigel, the First Circuit, while noting that the Supreme Court overruled its formulation of the reliance element of the test for non-dischargeability under section 523(a)(2)(A), articulated the following requirements for establishing an exception to discharge under section 523(a)(2)(A): [W]e have said that the statutory language does not \"remotely suggest that nondischargeability attaches to any claim .other than one which arises as a direct result of the debtor’s misrepresentations or malice.” Century 21 Balfour Real Estate, 16 F.3d at 10. Thus, in order to establish that a debt is nondischargeable because obtained by \"false pretenses, a false representation, or actual fraud,” we have held that a creditor must show that 1) the debtor made a knowingly false representation or one made in reckless disregard of the truth, 2) the debtor intended to deceive, 3) the debtor intended to induce the creditor to rely upon the false statement, 4) the creditor actually relied upon the misrepresentation, 5) the creditor’s reliance was justifiable, and 6) the reliance upon the false statement caused damage. Palmacci v. Umpierrez, 121 F.3d 781," }, { "docid": "3100934", "title": "", "text": "February 1991, Dr. Miller attempted a partial workout with the Millers’ largest creditor, his medical partner Dr. Sylvan Sarasohn. Sarasohn held two promissory notes against Miller Suzuki totalling $1,105,000.00. In exchange for cancellation of these notes, Miller transferred nine properties to Sarasohn. On November 1, 1991, the Millers filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Southern District of Florida. Equitable filed a proof of claim for $653,823.33 based on the Millers’ unpaid loans, and argued that the Millers’ debt to it was non-disehargeable under 11 U.S.C. § 523(a)(2)(B) and 11 U.S.C. § 727(a)(2)(A). The bank alleged, inter alia, that the Millers’ deficient financial statements and their transfer of property to Sara-sohn both were designed to defraud Equitable of funds owed to it. After a bench trial, the bankruptcy court held the Millers’ debt to be dischargeable under both § 523(a)(2)(B) and § 727(a)(2)(A). The district court reversed, concluding that the bankruptcy court’s findings on both grounds were clearly erroneous. The Millers appeal from the district court’s order. II. Under 11 U.S.C. § 523(a)(2)(B), a debt is non-dischargeable in bankruptcy where it was obtained by a writing: (1) that is materially false; (2) respecting the debt- or’s or an insider’s financial condition; (3) on which the creditor to whom the debt is liable for such, money, property, services, or credit reasonably relied; and (4) that the debtor caused to be made or published with the intent to deceive. The objecting creditor has the burden of proving each of these elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). If any one of these elements is not met, the debt is dischargeable. Moreover, courts generally construe the statutory exceptions to discharge in bankruptcy “liberally in favor of the debtor,” and recognize that “ ‘[t]he reasons for denying a discharge ... must be real and substantial, not merely technical and conjectural.’ ” In re Tully, 818 F.2d 106, 110 (1st Cir.1987) (quoting Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934)); see also Boyle v." }, { "docid": "15969601", "title": "", "text": "Tully, 818 F.2d at 110 (quoting In re Mascolo, 505 F.2d 274, 278 (1st Cir.1974)). Similarly, Congress has indicated that the “heart of the fresh start provisions” of the Bankruptcy Code is § 727. H.R.Rep. No. 595, 95th Cong., 1st Sess. 384 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6340. Normally, individual debtors are entitled to a discharge of indebtedness except as otherwise limited by the provisions of the Bankruptcy Code and other applicable federal law. See, e.g. 11 U.S.C. § 523(a) (listing nineteen categories of debts that are or may be excepted from discharge); 42 U.S.C. § 292f(g) (establishing a higher standard for the discharge of federally-insured HEAL student loans). But debt ors who knowingly and fraudulently fail to provide accurate schedules of their financial affairs by omitting a material fact are not entitled to a discharge. 11 U.S.C. § 727(a)(4); Tully, 818 F.2d at 110. Likewise, debtors who attempt to hinder, delay, or defraud a creditor or a trustee by transferring, removing, destroying, or concealing property are not entitled to a discharge. 11 U.S.C. § 727(a)(2); Bajgar, 104 F.3d at 501-02. Consistent with the congressional policy of providing the honest debtor with a fresh start, courts construe the discharge provisions of the Bankruptcy Code liberally in favor of the debtor and strictly against the party opposing discharge. Groman v. Watman (In re Watman), 301 F.3d 3, 7 (1st Cir.2002). “[T]he reasons for denying a discharge must be real and substantial, not merely technical and conjectural.” Commerce Bank & Trust Co. v. Burgess (In re Burgess), 955 F.2d 134, 137 (1st Cir.1992) (quoting Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934)). Congress also recognized that when a debtor obtains a discharge through fraud, fails to obey court orders, fails to cooperate with the trustee, or knowingly and fraudulently fails to report the acquisition of property of the bankruptcy estate and deliver or surrender such property to the trustee, a discharge previously granted may be revoked. 11 U.S.C. § 727(d). However, an action seeking revocation of a discharge must be commenced within one year after the discharge is granted or," }, { "docid": "15705755", "title": "", "text": "§ 523(a)(If) Section 523 of the Bankruptcy Code contains a number of exceptions to discharge of debt. Section 523(a) provides that: (a) A discharge ... does not discharge an individual debtor from any debt ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. (emphasis added). This provision has been part of the Bankruptcy Act since 1867. See An act to establish a uniform system of bankruptcy through the United States, ch. CLXXVI, § 33, 14 Stat. 517, 533 (1867) (repealed 1878); cf. An act to establish a uniform system of bankruptcy throughout the United States, eh. IX, § 1, 5 Stat. 440, 441 (1841) (repealed 1843) (excepting only debts arising from “defalcation as a public officer”). An exception to discharge should be strictly construed. Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915). “Exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh start’ policy....” Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994); see Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (endorsing the “fresh start” policy). Within this context, certain rules are clear about the availability of the exception: 1) The burden of proof to establish defalcation is on the creditor, given the “fresh start” policy. In re Menna, 16 F.3d at 9 (a claimant must prove that his “claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a)”); see also Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir.1997). 2) The creditor must show defalcation by a preponderance of the evidence. Grogan, 498 U.S. at 286-87, 111 S.Ct. 654. 3) The exception to discharge applies to fiduciaries only while they are acting in a fiduciary capacity. 4) Inherent in “defalcation” is the requirement that there be a breach of fiduciary duty; if there is no breach, there is no defalcation. 5) In order to avoid redundancy, defalcation must mean something other than fraud and different from “willful and malicious injury,” 11 U.S.C. § 523(a)(6). 6) Defalcation is to" }, { "docid": "10719668", "title": "", "text": "BAP 2003)). See also Beland v. Cunningham (In re Cunningham), 365 B.R. 352, 359-60 (Bankr.D.Mass. 2007). “Although relevant state laws may be instructive, what constitutes “willful and malicious injury” under § 523(a)(6) is a matter of federal law.' ” Little, 335 B.R. at 383 (citing Baldwin v. Kilpatrick (In re Baldwin), 249 F.3d 912, 917 (9th Cir.2001), and Kleman v. Taylor (In re Taylor), 322 B.R. 306, 309 (Bankr.N.D.Ohio 2004)). For a debt to be excepted from discharge as a result of a willful or malicious injury requires \"a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). \"The word 'willful' in [§ 523](a)(6) modifies the word 'injury,' indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Id. . In Lauzon, this Court observed: Section 523(a)(2)(A) excepts from discharge a debt of an individual debtor \"for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by — (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider's financial condition.” 11 U.S.C. § 523(a)(2)(A). The plaintiff must establish that the debt is excepted from discharge by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In Blacksmith Invs., LLC v. Woodford (In re Woodford), 403 B.R. 177 (Bankr.D.Mass.2009), aff'd, 418 B.R. 644 (1st Cir. BAP 2009), this Court stated: The United States Court of Appeals for the First Circuit has addressed issues under section 523(a)(2)(A) on multiple occasions, observing that, as with all exceptions to discharge under section 523(a), they are \"narrowly construed ... and the claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” McCrory v. Spigel (In re Spigel), 260 F.3d 27, 32 (1st Cir.2001) (citing Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994)). In Spigel," }, { "docid": "3100935", "title": "", "text": "Under 11 U.S.C. § 523(a)(2)(B), a debt is non-dischargeable in bankruptcy where it was obtained by a writing: (1) that is materially false; (2) respecting the debt- or’s or an insider’s financial condition; (3) on which the creditor to whom the debt is liable for such, money, property, services, or credit reasonably relied; and (4) that the debtor caused to be made or published with the intent to deceive. The objecting creditor has the burden of proving each of these elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). If any one of these elements is not met, the debt is dischargeable. Moreover, courts generally construe the statutory exceptions to discharge in bankruptcy “liberally in favor of the debtor,” and recognize that “ ‘[t]he reasons for denying a discharge ... must be real and substantial, not merely technical and conjectural.’ ” In re Tully, 818 F.2d 106, 110 (1st Cir.1987) (quoting Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934)); see also Boyle v. Abilene Lumber, Inc. (Matter of Boyle), 819 F.2d 583, 588 (5th Cir.1987). This narrow construction ensures that the “honest but unfortunate debtor” is afforded a fresh start. Birmingham Trust Nat’l Bank v. Case, 755 F.2d 1474, 1477 (11th Cir.1985); see also Caspers v. Van Home, 823 F.2d 1285, 1287 (8th Cir.1987) (“[E]vidence presented must be viewed consistent with congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally against the debtor, thus effectuating the fresh start policy of the Code.”). We confine our analysis in this case to the district court’s reversal of the bankruptcy court’s finding that the fourth element under 11 U.S.C. § 523(a)(2)(B), “intent to deceive,” was not met. Whether a debtor in bankruptcy acted with the requisite “intent to deceive” under § 523(a)(2)(B) is an issue of fact, and the bankruptcy court’s findings as to this issue are reviewed by both the district and appellate courts under the clearly erroneous standard. See Matter of Martin, 963 F.2d 809, 814 (5th Cir.1992); In re Liming, 797 F.2d 895," }, { "docid": "17488882", "title": "", "text": "Section 523(a)(6) generally relates to torts, not to “simple breach of contract.” See Riso, 978 F.2d at 1154. In the instant case, the record is devoid of any proof of a tortious interference. The Court adopts all the findings of fact and conclusions of law regarding section 523(a)(6). E. Discharge Order. “Discharge under § 727 is not a right, it is a privilege, and is available only to an honest debtor.” J.P. Morgan Chase Bank, N.A. v. Koss, 403 B.R. 191, 215 (Bankr.D.Mass.2009), citing In re Dubrowsky, 244 B.R. 560, 573 (E.D.N.Y.2000). “In general, the ‘fresh start’ objective of the Bankruptcy Code has led courts to construe strictly non-dischargeability claims.” In re Spadoni 316 F.3d 56, 60 (1st Cir.2003), citing In re Rembert, 141 F.3d 277, 281 (6th Cir.), cert. denied, 525 U.S. 978, 119 S.Ct. 438, 142 L.Ed.2d 357 (1998). “The reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.” In re Koss, 403 B.R. at 211, citing Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934). “A debtor’s discharge should not be denied under § 727(a)(4)(A) if the false statement or omission is the result of mistake or inadvertence ... or if the mistake is technical and not real.” Koss, 403 B.R. at 211, citing Gordon v. Mukerjee (In re Mukerjee), 98 B.R. 627, 629 (Bankr.D.N.H.1989) (citations omitted). The Court further held that, “Mather it must be demonstrated by a preponderance of the evidence that (1) the Debtor knowingly and fraudulently made a false oath, (2) relating to a material fact in connection with the case. Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir. 1987).” Id. “It makes no difference that [a debtor] does not intend to injure his creditors when a false statement is made-‘[c]reditors are entitled to judge for themselves what will benefit, and what will prejudice, them.’ ” Id., citing Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir.1984). In the instant case, the Court finds that the discharge of debtor Norberto Seda is warranted, as the record shows" }, { "docid": "1563118", "title": "", "text": "is, the plaintiff claims that Reath’s conduct constituted “false pretenses, a false representation, or actual fraud,” and that Reath inflicted injuries upon her with the required “willful and malicious” intent. DISCUSSION The Bankruptcy Code (“Code”) is designed to relieve debtors from the weight of oppressive indebtedness and to provide them with a “fresh start.” In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995). This “fresh start” is available only to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); In re Fegeley, 118 F.3d 979, 983 (3d Cir.1997); In re DeBaggis, 247 B.R. 383, 388 (Bankr.D.N.J.1999). Not all debts owed by an individual debtor are discharged in bankruptcy. Certain debts, listed in section 523, are excepted from discharge. The plaintiff has the burden of establishing all elements of a section 523 exception to discharge by a preponderance of the evidence. Grogan, 498 U.S. at 287-88, 111 S.Ct. at 659-60. Exceptions to discharge are to be construed strictly against creditors and liberally in favor of debtors. Cohn, 54 F.3d at 1113. To assert that her claim is non-dis-chargeable, the plaintiff relies on sections 523(a)(2)(A) and 523(a)(6) of the Bankruptcy Code. 1. Section 528(a)(2)(A) Debts based upon fraud are nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2)(A), which provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2)for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. Section 523(a)(2)(A) does not define the terms false pretenses, false representation, or actual fraud. Nor does the section expressly refer to elements such as reliance, materiality or intent. Nonetheless, courts have routinely inferred requirements establishing intent, reliance and materiality in applying section 523(a)(2)(A). See, e.g., In re Menna, 16 F.3d 7 (1st Cir.1994); In re Martin, 963 F.2d 809 (5th Cir.1992); In re Phillips, 804 F.2d 930 (6th Cir.1986). The frauds covered" }, { "docid": "8210085", "title": "", "text": "are irrelevant to the matters at hand. In response, Netria filed a “Motion to Strike Defendant’s ‘Answer’ and to Physically Remove It from the Docket” (“Motion to Strike”), to which Graham filed an objection similar in nature to his answer. Graham has not filed an objection to Netria’s motion for summary judgment. Finally, Netria filed a motion for relief from the automatic stay to allow the superior court to determine the amount of Graham’s liability and to enter a final judgment. Graham’s answer to this motion resembles his other pleadings. The Court held a hearing on November 14, 2006, to consider Netria’s three motions and Graham’s responses thereto. After hearing the parties, the Court took the matters under advisement. Discussion A. Motion for Summary Judgment: Section 528(a)(6) “Exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh start’ policy and the claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994). Section 523(a)(6) excepts from discharge debts “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). 1. Summary Judgment Standard Summary judgment should be granted only 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 a judgment as a matter of law. In this context, ‘genuine’ means that the evidence is such that a reasonable jury could resolve the point in favor of the nonmoving party.” Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 38 (1st Cir.1993) (quoting United States v. One Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir.1992)). “Material,” in the context of Rule 56(c), means that the fact has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). Courts faced with a motion for summary judgment should" }, { "docid": "17488855", "title": "", "text": "false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; or (3) ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (5) ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. “Exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh start’ policy,’ and, for that reason, the claimant must show that his ‘claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).’ ” Palmacci, 121 F.3d at 786, citing Century 21 Balfour Real Estate v. Menna, 16 F.3d 7, 9 (1st Cir.1994); see In re Bajgar, 104 F.3d at 498 n. 1. “The statutory requirements for a discharge are ‘construed liberally in favor of the debtor’ and ‘[t]he reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural’ ” Palmacci, 121 F.3d at 786, citing Boroff v. Tully (In re fully), 818 F.2d 106, 110 (1st Cir.1987). Each element of 11 U.S.C. § 523 must be proved under the standard of preponderance of the evidence. Palmacci, 121 F.3d at 787. “The burden of proof and the burden of production as to each element rests with the party contesting the dischargeability of a particular debt under the Bankruptcy Code § 523.” Id. A. 11 U.S.C. § 523(a)(2)(A). The bankruptcy court set forth the elements that Mitsubishi must prove in order to show the non-dischargeability of its debt under 11 U.S.C. § 523(a)(2)(A) for actual fraud, false pretenses or false statements: “1. The debtor made a knowingly false representation or one made in reckless disregard of the truth; 2. The debtor intended to deceive; 3." }, { "docid": "14138777", "title": "", "text": "whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. Anderson, 470 U.S. at 575, 105 S.Ct. at 1512. Section 523(a)(2)(A) of the Bankruptcy Code provides: § 523. Exceptions to discharge (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. See 11 U.S.C. § 523(a)(2)(A). “Exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh start’ policy,” and, for that reason, the claimant must show that his “claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994); see In re Bajgar, 104 F.3d at 498 n. 1. The statutory requirements for a discharge are “construed liberally in favor of the debtor” and “[t]he reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.” Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir.1987) (internal quotation marks omitted). On the other hand, we have noted that “the very purpose of certain sections of the law, like [§ 727(a)(2)], is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with then-assets or with the reality of their affairs.” Id. Likewise, other sections of the law, like § 523(a)(2)(A), are intended to make certain that bankruptcy protection is not afforded to debtors who have obtained property by means of a fraudulent misrepresentation. Palmacci alleges that Umpierrez made" }, { "docid": "22803086", "title": "", "text": "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.” Century 21 Balfour Real Estate v. Menna, 16 F.3d 7, 9 (1st Cir.1994) (quotations and citations omitted). Although we view the evidence in the light most favorable to the nonmov-ant, “[a]s to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” Id. (quoting Ralar Distribs., Inc. v. Rubbermaid, Inc., 4 F.3d 62, 67 (1st Cir.1993)) (alteration in original). III. The Bankruptcy Code offers debtors, through discharge, “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). “By seeking discharge, however, [the debtor] placets] the rectitude of his prior dealings squarely in issue, for as the Court has noted, the Act limits th[e] opportunity [for discharge] to the ‘honest but unfortunate debtor.’ ” Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) (quoting Local Loan Co., 292 U.S. at 244, 54 S.Ct. 695). Nevertheless, the Bankruptcy Code does not condition discharge upon a generalized determination of the moral character of the debtor. Instead, it specifies the types of debts that the Code deems exempt from discharge. See, e.g., 11 U.S.C. § 523(a). Moreover, “[exceptions to discharge are narrowly construed .. ! and the claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate, 16 F.3d at 9. A. The scope of the exception to discharge. As the party seeking to prevent Spigel from discharging his debt to them, the McCrorys bear this burden to show that Spigel’s debt comes squarely within an exemption from discharge. They focus their argument solely on 11 U.S.C. § 523(a)(2)(A), which exempts from discharge a debt" }, { "docid": "17142632", "title": "", "text": "this exception should be recast. We REVERSE and REMAND to the district court with instructions to remand to the bankruptcy court for proceedings consistent with this opinion. . The district court reasoned that “ ‘the statutory right to a discharge should ordinarily be construed liberally in favor of the debtor.'” Martin v. Bajgar (In re Bajgar), C.A. No. 95-12562-MEL, slip op. at 2-3 (quoting In re Tully, 818 F.2d 106, 110 (1st Cir.1987)). Although Tully did posit that \" ‘[t]he reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural,' ” it also directed that, \"[o]n the other hand, the very purpose of certain sections of the law, like 11 U.S.C. § 727(a)[], is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs.” Tully, 818 F.2d at 110 (quoting Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934)). In a more recent case, moreover, we explained that “[exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code's 'fresh start' policy and the claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy Code § [727(a)(2)Menna, 16 F.3d at 9 (em phasis added). In this case, Martin’s claim that Bajgar should he denied discharge because Baj-gar fraudulently transferred property within one year before the filing of the bankruptcy petition falls squarely within the exception that Section 727(a)(2)(A) enumerates. See 11 U.S.C. § 727(a)(2)(A). The Tully court's instruction, therefore, does not control this case. . Adeeb, by contrast, did present such a picture. The Adeeb court explained: We are ... persuaded by practical considerations that a discharge should not be denied in the present situation. It is not uncommon for an uncounseled or poorly counseled debtor faced with mounting debts and pressure from his creditors to attempt to protect his property by transferring it to others. Upon later reflection or upon obtaining advice from experienced bankruptcy counsel, the debtor may realize his original transfer of property was a" }, { "docid": "14138778", "title": "", "text": "“claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994); see In re Bajgar, 104 F.3d at 498 n. 1. The statutory requirements for a discharge are “construed liberally in favor of the debtor” and “[t]he reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.” Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir.1987) (internal quotation marks omitted). On the other hand, we have noted that “the very purpose of certain sections of the law, like [§ 727(a)(2)], is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with then-assets or with the reality of their affairs.” Id. Likewise, other sections of the law, like § 523(a)(2)(A), are intended to make certain that bankruptcy protection is not afforded to debtors who have obtained property by means of a fraudulent misrepresentation. Palmacci alleges that Umpierrez made three misrepresentations which induced him to invest $75,000 in the project: (1) that Umpierrez and his brother would invest $75,-000 of their own money in the project; (2) that the project would have a total investment of $250,000; and (3) that a trust would be established to hold the funds and to supervise the project. With respect to each of these three claims, Palmacci was required to establish both that he had a valid claim against Umpierrez and that the claim should not be discharged in bankruptcy. See Grogan v. Garner, 498 U.S. 279, 283, 111 S.Ct. 654, 657, 112 L.Ed.2d 755 (1991). Here, the claim and the reason for exemption from discharge are essentially the same: the common law tort of false representation, also known as deceit. Under the traditional common law rule, a defendant will be liable if (1) he makes a false representation, (2) he does so with fraudulent intent, i.e., with “scienter,” (3) he intends to induce the plaintiff to rely on the misrepresentation, and (4) the misrepresentation does induce reliance," }, { "docid": "1883999", "title": "", "text": "Cir.2001) (quoting Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994)); Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir.1997) (quoting same). By specifying the types of debts that the Bankruptcy Code considers exempt from discharge, it does not condition discharge upon a generalized determination of the moral character of the debtor. In re Spigel, 260 F.3d at 32. On the other hand, “[b]y seeking discharge ... [the debtor] places the rectitude of his prior dealings squarely in issue, for ... th[e] opportunity [for discharge is limited] to the ‘honest but unfortunate debtor.’ ” Id. (quoting Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) (citation omitted)). A. 11 U.S.C. § 523(a)(4) Pursuant to § 523(a)(4), an individual debtor can not discharge a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). In order to establish an exception to discharge under § 523(a)(4), a creditor bears the burden of proving each and every element by a preponderance of the evidence. Rutanen v. Baylis (In re Baylis), 313 F.3d 9, 17 (1st Cir.2002) (citing Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)); Palmacci, 121 F.3d at 787. “The definition of ‘fiduciary’ for purposes of § 523(a)(4) has been narrowly construed. The term applies only to relationships arising out of express or technical trusts, and not to trusts that are im plied in law as a remedy.” Moore v. Murphy (In re Murphy), 297 B.R. 332, 348 (Bankr.D.Mass.2003) (citation omitted). Federal law controls who is considered a fiduciary for § 523(a)(4) purposes, although state law is relevant to determining whether a trust relationship exists. Kwiat v. Doucette, 81 B.R. 184, 188 (D.Mass.1987). Furthermore, the trust relationship must exist prior to the act creating the debt. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333-34, 55 S.Ct. 151, 79 L.Ed. 393 (1934). An express trust “requires a declaration of trust and intent to create a trust relationship with respect to a clearly defined res.” Staniunas v." }, { "docid": "2147239", "title": "", "text": "11 U.S.C. § 523(a)(6). In order to establish the nondischargeability of the debt under this subsection, the Plaintiff must prove by a preponderance of the evidence the following four elements: 1. the debtor injured another entity or the property of another entity 2. willfully 3. and maliciously, 4. and, by such injury, gave rise to the 'debt at issue. “Exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh start’ policy,” and, for that reason, the claimant must show that its claim “comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994); Palmacci 121 F.3d at 786. The Plaintiff contends that each of the requisite elements has already been established by virtue of the Plaintiffs prepetition judgment against the Debtor, and that the Debtor is collaterally estopped from relitigating the issues. The Debtor responds that willfulness and malice were not litigated in the prepetition action and therefore cannot be deemed established by collateral estoppel. If collateral estoppel is not available, the Plaintiff relies, in the alternative, on the evidence, arguing that the evidence establishes that the Debtor caused the injury both willfully and maliciously. 1. Collateral Estoppel Collateral estoppel principles apply in proceedings to determine the dischargeability of a debt under § 523(a). Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). The preclusive effect of a judgment is determined by the collateral estoppel law of the jurisdiction from which the judgment derives. In this instance, the judgment was issued by a federal court, so the governing principles of collateral estoppel are those of federal law. Under federal law, a judgment in one proceeding will preclude the relitigation between the same parties in a subsequent proceeding of any factual or legal issue that was actually decided in the first proceeding only when the following conditions are satisfied: “(1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have" }, { "docid": "17142631", "title": "", "text": "Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (“[I]n the same breath that we have invoked th[e] ‘fresh start’ policy, we have been careful to explain that the [Bankruptcy] Act limits the opportunity for a completely unencumbered new beginning to the ‘honest but unfortunate debtor.’ ”); Citibank, N.A. v. Eashai (In re Eashai), 87 F.3d 1082, 1088 (9th Cir.1996) (“This exception to discharge furthers the policy that an honest but unfortunate debtor obtains a fresh start while a dishonest debtor does not benefit from his wrongdoing.”); Mayer v. Spanel Int'l Ltd., 51 F.3d 670, 674 (7th Cir.) (“Congress concluded that preventing fraud is more important than letting defrauders start over with a clean slate, and we must respect that judgment.”), cert. denied, — U.S. -, 116 S.Ct. 563, 133 L.Ed.2d 488 (1995). Conclusion Martin’s claim “comes squarely within” Section 727(a)(2)(A)’s exception for property fraudulently, transferred within one year of the filing of a bankruptcy petition. See Meri-na, 16 F.3d at 9. It is for Congress to determine whether or not this exception should be recast. We REVERSE and REMAND to the district court with instructions to remand to the bankruptcy court for proceedings consistent with this opinion. . The district court reasoned that “ ‘the statutory right to a discharge should ordinarily be construed liberally in favor of the debtor.'” Martin v. Bajgar (In re Bajgar), C.A. No. 95-12562-MEL, slip op. at 2-3 (quoting In re Tully, 818 F.2d 106, 110 (1st Cir.1987)). Although Tully did posit that \" ‘[t]he reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural,' ” it also directed that, \"[o]n the other hand, the very purpose of certain sections of the law, like 11 U.S.C. § 727(a)[], is to make certain that those who seek the shelter of the bankruptcy code do not play fast and loose with their assets or with the reality of their affairs.” Tully, 818 F.2d at 110 (quoting Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934)). In a more recent case, moreover, we explained that" }, { "docid": "1883998", "title": "", "text": "agreement not to reconvey Christine’s interest in 11 Fowler to her. And, although acknowledging some of the factual circumstances surrounding the Plaintiffs § 523(a)(6) claim, the Mullarkeys maintain that all of their actions were justified as they were acting under color of title and none of the actions complained of would rise to the “willful” and “malicious” standard for nondischargeability as set forth in § 523(a)(6). Finally, the Mullarkeys contend that even if the Court finds in favor of Christine on any of her theories, Nicole should spared from that determination as there is no evidence to support a finding of culpability on her part. III. DISCUSSION The First Circuit has clearly articulated the competing equitable interests to analyzing exceptions to discharge under the Bankruptcy Code. On the one hand, in furtherance of the Bankruptcy Code’s ‘fresh start’ policy, “[exceptions to discharge are narrowly construed ... and the claimant must show that its claim comes squarely within an exception enumerated in [§ 523(a) ].” McCrory v. Spigel (In re Spigel), 260 F.3d 27, 32 (1st Cir.2001) (quoting Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994)); Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir.1997) (quoting same). By specifying the types of debts that the Bankruptcy Code considers exempt from discharge, it does not condition discharge upon a generalized determination of the moral character of the debtor. In re Spigel, 260 F.3d at 32. On the other hand, “[b]y seeking discharge ... [the debtor] places the rectitude of his prior dealings squarely in issue, for ... th[e] opportunity [for discharge is limited] to the ‘honest but unfortunate debtor.’ ” Id. (quoting Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) (citation omitted)). A. 11 U.S.C. § 523(a)(4) Pursuant to § 523(a)(4), an individual debtor can not discharge a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). In order to establish an exception to discharge under § 523(a)(4), a creditor bears the burden of proving each and every element" }, { "docid": "2147238", "title": "", "text": "from which to pay obligations. For these reasons, I find that the Plaintiff has failed to carry its burden in three respects. First, in view of Plaintiffs failure in the complaint to specify the loss or deficiency at issue, the count must be dismissed; the Debtor cannot be required at trial to explain a loss or deficiency without prior notice of what requires explanation. Second, the Plaintiff failed at trial to carry its initial burden of proving that there was a loss of assets for which explanation might be needed. And third, the Plaintiff has not sustained its ultimate burden of proving that the deficiency of assets to meet his liabilities is not adequately explained. For these reasons, judgment must enter for the Debtor on this count as well. Determination of Dischargeability under § 523(a)(6) In the alternative, the Plaintiff seeks a determination that its judgment debt against the Debtor is excepted from discharge as a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). In order to establish the nondischargeability of the debt under this subsection, the Plaintiff must prove by a preponderance of the evidence the following four elements: 1. the debtor injured another entity or the property of another entity 2. willfully 3. and maliciously, 4. and, by such injury, gave rise to the 'debt at issue. “Exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh start’ policy,” and, for that reason, the claimant must show that its claim “comes squarely within an exception enumerated in Bankruptcy Code § 523(a).” Century 21 Balfour Real Estate v. Menna (In re Menna), 16 F.3d 7, 9 (1st Cir.1994); Palmacci 121 F.3d at 786. The Plaintiff contends that each of the requisite elements has already been established by virtue of the Plaintiffs prepetition judgment against the Debtor, and that the Debtor is collaterally estopped from relitigating the issues. The Debtor responds that willfulness and malice were not litigated in the prepetition action and therefore cannot be deemed established by collateral estoppel. If" }, { "docid": "17488854", "title": "", "text": "the evidence presented, and a well developed opinion denied Mitsubishi’s request to declare its debt in the amount of $2,006,660.97 as non-dischargeable. Opinion and Order (Docket No. 79). The bankruptcy court concluded that “[t]he preponderance of the evidence does not show that Mr. Seda intended to cause injury to Mitsubishi.” Id. “The evidence shows that the corporation, Lunor, through its officers/shareholders, breached the financial agreement and caused substantial economic harm to Mitsubishi.” Opinion and Order (Docket No. 79). “However, this mismanagement does not warrant that the corporate debt be deemed non-dischargeable as to Mr. Seda.” Opinion and Order (Docket No. 79). The Court proceeds to analyze whether Mitsubishi’s debt is non-dischargeable. Applicable Law and Discussion Section 523 of the Bankruptcy Code governs the exceptions to discharge. Section 523(a)(2) provides in its relevant part: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; or (3) ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (5) ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. “Exceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh start’ policy,’ and, for that reason, the claimant must show that his ‘claim comes squarely within an exception enumerated in Bankruptcy Code § 523(a).’ ” Palmacci, 121 F.3d at 786, citing Century 21 Balfour Real Estate v. Menna, 16 F.3d 7, 9 (1st Cir.1994); see In re Bajgar," } ]

[ { "docid": "10424037", "title": "", "text": "omission was material, directly related to measuring a candidate for employment, and was relied upon by the employer in making the hiring decision.” Johnson v. Honeywell Informations Systems, Inc., 955 F.2d at 415. In other words, the question is whether the plaintiff/employee would have been hired had he or she truthfully filled out his application or resume. See e.g., Washington v. Lake County, Ill., 969 F.2d 250, 254 (7th Cir.1992) (cited with approval in Milligan-Jensen v. Michigan Tech. Univ., 975 F.2d 302, 305 n. 3 (6th Cir.1992)). (“The first hypothetical question is whether the [employer] would have hired [the plaintiff/employee] if it had known [the truth].”); Churchman v. Pinkerton’s Inc., 756 F.Supp. 515, 521 (D.Kan.1991) (cited with approval in Johnson, 955 F.2d at 414) (“plaintiff would not have been hired if she had truthfully completed the employment application____”) The second category is often characterized as “would have fired” cases and most often arises when an employee, post-hire, engages in misconduct, although resume fraud cases may also be analyzed under the “would have fired” standard. See Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.1992). If there is no genuine issue that the employee would have been fired had the misconduct been known, summary judgment in favor of the defendant/employer is appropriate. Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674 at *2, 1992 U.S.App. LEXIS 15399 at *2. The defendant in the instant case argues that the plaintiffs’ claims are precluded under both theories. There is persuasive, albeit non-binding, authority which holds that the after-acquired evidence doctrine may only be used to ask whether the employer would have made the same decision challenged in the case before the court (refusal to hire or discharge), had it known of the after-acquired evidence. Washington v. Lake County, Ill., 969 F.2d 250 (7th Cir.1992); see infra note 5. Under that authority, our inquiry here, in light of plaintiff’s claims of discriminatory discharge, would be limited to determining whether the defendant “would have fired” plaintiff had it known of the after-acquired evidence. Our Circuit has not yet provided guidance concerning the Seventh" } ]

[ { "docid": "10343926", "title": "", "text": "220453 (D.Md. June 9, 1993); Kravit v. Delta Airlines, Inc., 1992 WL 390236 (E.D.N.Y. Dec. 4, 1992); Redd v. Fisher Controls, 814 F.Supp. 547 (W.D.Tex.1992); O’Day v. McDonnell Douglas Helicopter Co., 784 F.Supp. 1466 (D.Ariz.1992); Sweeney v. U-Haul Co. of Chicago Metroplex, 1991 WL 1707 (N.D.Ill.1991). B. The Sixth Circuit The Sixth Circuit has adopted the Tenth Circuit’s approach, see Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 305 (6th Cir.1992) (if employer shows that plaintiff would have been Bred had after acquired evidence been known to employer during employee’s tenure, actual discrimination is irrelevant), but has modified it for cases involving resume fraud. In Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409 (6th Cir.1992), the court formulated a fraud type analysis for cases involving misrepresentations in a resume or employment application, as differentiated from cases involving on the job misconduct. It held that the employer would be entitled to summary judgment only if the “misrepresentation or omission was material, directly related to measuring a candidate for employment, and was relied upon by the employer in making the hiring decision.” Id. at 414 (citing Churchman v. Pinkerton’s, Inc., 756 F.Supp. 515, 520 (D.Kan. 1991)). The court deemed these requirements necessary to prevent employers from “combing a discharged employee’s record for evidence of any and all misrepresentations, no matter how minor or trivial, in an effort to avoid legal responsibility for an otherwise illegal discharge.” Id. This fraud analysis has been applied in other circuits as well. See, e.g., Agbor v. Mountain Fuel Supply Co., 810 F.Supp. 1247 (D.Utah 1993); Churchman v. Pinkerton’s, Inc., 756 F.Supp. 515, 520 (D.Kan.1991); compare Wallace v. Dunn Construction Co., 968 F.2d 1174, 1187 (11th Cir.1992) (Godbold, J., dissenting) (plaintiffs having committed fraud in application, as distinguished from employee properly hired who commits misconduct after hire, have no standing under Title VII). C. The Seventh Circuit The Seventh Circuit has rejected the Sixth Circuit’s standard for resume or application fraud. Washington v. Lake County, Illinois, 969 F.2d 250 (7th Cir.1992), involved a suit under Title VII, and 42 U.S.C. §§ 1981 & 1983 in which" }, { "docid": "1807596", "title": "", "text": "(1986). . As we understand the appellant’s \"nexus” argument, it is that her improper taking of the records cannot be a basis for a denial of her claim under the ADEA because she took the records to give her a basis to contest her expected discharge because of her age. . The employer was also aware during Summer's employment that he had falsified some company records. The company placed him on probationary status for two weeks and warned him never again to falsify company records, but he did not heed that advice. 864 F.2d at 702. . See also Paglio v. Chagrin Valley Hunt Club Corp., 966 F.2d 1453, 1992 WL 144674 at *2 (6th Cir.1992) (unpublished) (\"even if the Club was motivated to discharge Paglio because of his age, the misuse of Club funds discovered after Pag-lio's retirement provided an independent basis for termination.”); Dotson v. United States Postal Serv., 977 F.2d 976, 978 (6th Cir.), cert. denied, -U.S. -, 113 S.Ct 263, 121 L.Ed.2d 193 (1992) (\"Even though plaintiff's failure to complete the application truthfully was discovered post-termination, he is not entitled to handicap discrimination relief when he was not initially qualified for the position.”); Baab v. AMR Services Corp., 811 F.Supp. 1246 (N.D.Ohio 1993) (interpreting Ohio law and holding former employee's state discriminatory discharge claims were barred by after-acquired evidence of employee's misstatements on employment application); Bray v. Forest Pharmaceuticals, Inc., 812 F.Supp. 115, 117 (S.D.Ohio 1993) (\"as the Defendant has shown that the misrepresentations or omissions [on former employee's application] were material, were relied upon by the employer in making its decisions, and are clearly directly related to measuring the candidate for this type of employment, the post-discharge discovery of falsification renders summary judgment appropriate in this case.”); and Benson v. Quanex Corp., 1992 WL 63013 (E.D.Mich.1992) (unpublished) (granting summary judgment to employer in racial harassment and constructive discharge action under Michigan Elliott-Larsen Civil Rights Act because the employer showed it would not have hired the employee had it known of the employee's prior felony conviction and incarceration). . Of course, if the employee’s \"misconduct” falls" }, { "docid": "12911013", "title": "", "text": "Farm would have fired him had it known of his transgressions — that “while ... after-acquired evidence cannot be said to have been a ‘cause’ for Summers’ discharge in 1982, it is relevant to Summers’ claim of ‘injury,’ and does itself preclude the grant of any present relief or remedy to Summers.” Id. at 708. The court likened the plaintiffs situation to a “masquerading doctor,” meaning one who was not really a doctor but who had pretended to be one, discharged for discriminatory reasons, who “would be entitled to no relief.” Id. Since Summers, courts have allowed after-acquired evidence to bar the employer’s liability in two general categories of cases: ré-sumé and/or application fraud cases, and misconduct on the job cases. In a case of ré-sumé or application fraud, the employer typically asserts that, had it known of the plaintiffs misrepresentation(s), it would never have hired him or her. See Welch v. Liberty Machine Works, Inc., 23 F.3d 1403, 1404 (8th Cir.1994) (brought under the Employee Retirement Income Security Act, 29 U.S.C.A. §§ 1001-1461 (1985 & Supp.1994), and the Missouri Human Rights Act, MoANN.Stat. §§ 213.010-.137 (Vernon 1986 & Supp.1994)). The employer may alternatively argue that, had it at any time after the hiring found out about the misrepresentation(s), it would have promptly fired the plaintiff. See O’Driscoll v. Hercules, Inc., 12 F.3d 176, 177-78 (10th Cir.1994) (expanding the Summers holding from misconduct to after-acquired résumé and application fraud eases), 'petition for cert. filed, 62 U.S.L.W. 3757 (Apr. 1, 1994) (No. 93-1728); Reed v. AMAX Coal Co., 971 F.2d 1295, 1298 (7th Cir.1992) (per curiam). In some eases employers advance both arguments in the alternative. See Milligan-Jensen v. Michigan Technological University, 975 F.2d 302, 304 n. 2 (6th Cir.1992), cert. dismissed, — U.S. -, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993); Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir.1992); Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409, 414-15 (6th Cir.1992); cf. Dotson v. United States Postal Service, 977 F.2d 976, 978 (6th Cir.) (per curiam) (holding that the plaintiffs employment application misrepresentations rendered him unqualified for" }, { "docid": "3383761", "title": "", "text": "Farm Mut. Auto. Ins. Co., 864 F.2d at 707; Redd v. Fisher Controls, 814 F.Supp. 547 (W.D.Tex.1992). See also Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977) (discussing causation in the context of wrongful discharge for protected conduct). Two recent cases which are factually similar to the case at bar provide a useful illustration. In O’Day v. McDonnell Douglas Helicopter Co., 784 F.Supp. 1466 (D.Ariz.1992), the plaintiff employee alleged discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). The summary judgment evidence revealed the employee had secretly removed his personnel file, photocopied it and showed portions of the file to a fellow employee. 784 F.Supp. at 1467. The district court granted summary judgment for the employer based on the after acquired evidence doctrine. Athough noting that in some circumstances the question of whether the employee would have been fired raises a fact question, the court determined an employee handbook and the affidavit of a company official proved the employee would have been discharged. Id. at 1468-70. In Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.1992), the plaintiff employee alleged the defendant had discriminated against her on the basis of gender in violation of Title VII. After she was discharged, it was learned she had omitted a criminal conviction from her employment application. The Sixth Circuit affirmed a judgment for the defendant, stating the plaintiffs failure to inform her employer of the conviction “if discovered during her employment, would have resulted in [her] termination,” and therefore “it becomes irrelevant whether or not she was discriminated against....” 975 F.2d at 305. Applying these holdings to the facts of this case, it is clear that Bechtel is entitled to summary judgment on Kuchler’s Title VII claim. The Agreement Kuehler signed when she became a salaried employee stated in no uncertain terms that proprietary and confidential information could not be removed without prior authorization. It is undisputed that Kuehler removed proprietary information from the Bechtel premises during the time she was employed there. Kuehler has not" }, { "docid": "305911", "title": "", "text": "that the plaintiff would have been terminated had the defendant known of the falsifications during the plaintiffs employment. 864 F.2d at 708. The court held that the existence of legitimate grounds for termination, and the showing that the plaintiff would have been terminated on those grounds, negated any injury on the plaintiffs part. The court held that the plaintiff was therefore barred from any relief on the discrimination claim, and affirmed the district court’s grant of summary judgment to the defendant. Id. The Sixth Circuit has substantially adopted the theory of the Summers Defense. In Milligan-Jensen v. Michigan Technological University, 975 F.2d 302 (6th Cir.1992), cert. dism’d, — U.S. -, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993), the Sixth Circuit reviewed a case under Title VII. The defendant asserted that after-acquired evidence of resume fraud was grounds for termination. Citing Summers, the court held that if the defendants could prove the plaintiff would have been terminated if the defendant had known of the fraud earlier, the plaintiff was barred entirely from relief. 975 F.2d at 304-05. In cases involving resume fraud, the Sixth Circuit has limited the Summers Defense to circumstances “where the misrepresentation or omission was material, directly related to measuring a candidate for employment, and was relied upon in making the hiring decision.” Johnson v. Honeywell Information Systems, 955 F.2d 409, 414 (6th Cir.1992), reh. denied. The Seventh Circuit has endorsed a version of the Summers Defense in Washington v. Lake County, Illinois, 969 F.2d 250 (7th Cir.1992). The plaintiff there alleged violations of Title VII, 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The defendant asserted a Summers Defense based on after-acquired evidence of resume fraud. The court held that after-acquired evidence of misconduct, fraud or otherwise, which would have caused the termination of the plaintiff had the defendant known of it, barred the plaintiff entirely from relief. 969 F.2d at 256. While recognizing the Summers Defense, the Seventh Circuit has apparently limited the effect of the defense on the award of back pay. In Smith v. General Scanning, Inc., 876 F.2d 1315 (7th Cir.1989), the" }, { "docid": "13522484", "title": "", "text": "Cir.1992), we first applied the after-acquired evidence rule in the employment discrimination context, holding that an employer could escape any liability for its discriminatory actions if the company learned, after the fact, of an otherwise legitimate reason for taking the adverse employment action. In Honeywell, a female managerial employee sued her former employer for violating several Michigan laws prohibiting discrimination. The company, during discovery, learned that the employee had falsified the educational and experience portions of her resume. Although she had •claimed to have earned a college degree, a prerequisite for the job, she had taken only four courses at the local university. Interpreting Michigan law, we held that “just cause for termination of employment may include facts unknown to an employer at the time of dismissal, though obviously such facts would be neither the actual nor inducing cause for the discharge.” In Milligan-Jensen v. Michigan Tech. Univ., 975 F.2d 302 (6th Cir.1992), cert. granted, — U.S. —, 113 S.Ct. 2991, 125 L.Ed.2d 686 (1993), cert. dismissed, — U.S. —, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993), we extended our application of the after-acquired evidence to cover Title VII claims. Again, we provided the employer complete relief from liability for its allegedly discriminatory actions because the former campus police officer had falsified her employment application when applying for the position. In reversing the district court, which had provided the employee with partial relief, we affirmed our holding in Johnson that an employee who makes material misrepresentations on her employment application may be denied all relief even if she is a victim of a discriminatory discharge. We have also applied the after-acquired evidence rule when employee misconduct, rather than resume fraud, is the basis of the employer’s later after-acquired evidence. See McKennon v. Nashville Banner Pub. Co., 9 F.3d 539 (6th Cir.1993), rev’d, — U.S. —, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). The Supreme Court has recently unanimously reversed this court in the McKennon case. While McKennon involved an ADEA claim, we are persuaded by its language that it applies equally to a Title VII claim. The ADEA and Title" }, { "docid": "1807592", "title": "", "text": "legitimate reasons for the termination of employment.” Id. at 414. We reiterated our commitment to the Summers after-acquired evidence rule in Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.1992), cert. granted, — U.S.—, 113 S.Ct. 2991, 125 L.Ed.2d 686, cert. dismissed, — U.S.—, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993). In Milligan-Jensen, the plaintiff produced evidence that her employer violated Title VII by discriminating against her on the basis of her sex. After the employee’s discharge, however, the defendant discovered the employee had omitted a DUI conviction from her employment application. We held that this omission was material and explained that because the plaintiffs falsification, “if discovered during her employment, would have resulted in [her] termination, it becomes irrelevant whether or not she was discriminated against_” Id. at 305. The Supreme Court granted certiorari to review this case, but dismissed it after the parties settled. Thus, in Johnson and Milligan-Jensen, we have firmly endorsed the principle that after-acquired evidence is a complete bar to any recovery by the former employee where the employer can show it would have fired the employee on the basis of the evidence. Moreover, the Summers case, from which this circuit adopted the after-acquired evidence rule, did not involve resume fraud, but like this case involved evidence of employee misconduct. In Summers, the plaintiff falsified company records more than 150 times. 864 F.2d at 703. Finally, we agree with a district court which recently applied the after-acquired evidence doctrine in a factually similar situation. O’Day v. McDonnell Douglas Helicopter Co., 784 F.Supp. 1466 (D.Ariz.1992). In O’Day, a former employee who alleged he was discrim- mated against under the ADEA surreptitiously removed his confidential personnel file, photocopied portions of the file, and showed some of the material to a co-worker. Id. at 1467. The court noted that the issue of whether an employer would actually fire an employee for misconduct could generate a genuine issue of material fact in some cases. Citing an employee handbook and an affidavit by a company official indicating that the plaintiff would have been immediately fired for his conduct, however," }, { "docid": "3383762", "title": "", "text": "would have been discharged. Id. at 1468-70. In Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.1992), the plaintiff employee alleged the defendant had discriminated against her on the basis of gender in violation of Title VII. After she was discharged, it was learned she had omitted a criminal conviction from her employment application. The Sixth Circuit affirmed a judgment for the defendant, stating the plaintiffs failure to inform her employer of the conviction “if discovered during her employment, would have resulted in [her] termination,” and therefore “it becomes irrelevant whether or not she was discriminated against....” 975 F.2d at 305. Applying these holdings to the facts of this case, it is clear that Bechtel is entitled to summary judgment on Kuchler’s Title VII claim. The Agreement Kuehler signed when she became a salaried employee stated in no uncertain terms that proprietary and confidential information could not be removed without prior authorization. It is undisputed that Kuehler removed proprietary information from the Bechtel premises during the time she was employed there. Kuehler has not offered any evidence that she was authorized to remove these files or that she removed them for legitimate reasons. Finally, the Bechtel employee handbook and the affidavit of a Bechtel official demonstrate Kuehler would have been fired if the company had known she removed the documents. Kuehler argues the after acquired evidence rule only applies in cases of wrongful termination and not in cases of gender discrimination. If Kuehler is arguing that courts have never applied the doctrine in these types of cases, she is wrong. The after acquired evidence doctrine is just as applicable in employment discrimination cases as it is in cases of wrongful termination. See O’Day, 784 F.Supp. 1466, Milligan-Jensen, 975 F.2d 302. The main thrust of Kuchler’s argument seems to be that the alleged sexual discrimination is an injury separate and apart from her termination, but the facts of this case prove otherwise. There may be cases where a plaintiff employee suffers gender or other discrimination over a period of time and then commits some act which would justify termination. If" }, { "docid": "1807591", "title": "", "text": "remedy. Id. at 708. This circuit adopted the Summers after-acquired evidence rule in Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409 (6th Cir.1992), a diversity action under Michigan law. In Johnson, the plaintiff sued her former employer alleging that she was discharged in violation of Michigan’s Elliott-Larsen Civil Rights Act. During discovery, the employer learned that the plaintiff had misrepresented her educational background on her employment application, for example, claiming to have a bachelor’s degree when in fact she did not. The court held that: on these facts, even if we assume that Honeywell discharged Johnson in retaliation for her opposition to violations of the Act, she is not entitled to relief. Because Honeywell established that it would not have hired Johnson and that it would have fired her had it become aware of her resume fraud during her employment, Johnson is entitled to no relief, even if she could prove a violation of Elliott-Larsen. Id. at 415. The Johnson court noted, however, that evidence of an employee’s resume fraud “must establish valid and legitimate reasons for the termination of employment.” Id. at 414. We reiterated our commitment to the Summers after-acquired evidence rule in Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.1992), cert. granted, — U.S.—, 113 S.Ct. 2991, 125 L.Ed.2d 686, cert. dismissed, — U.S.—, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993). In Milligan-Jensen, the plaintiff produced evidence that her employer violated Title VII by discriminating against her on the basis of her sex. After the employee’s discharge, however, the defendant discovered the employee had omitted a DUI conviction from her employment application. We held that this omission was material and explained that because the plaintiffs falsification, “if discovered during her employment, would have resulted in [her] termination, it becomes irrelevant whether or not she was discriminated against_” Id. at 305. The Supreme Court granted certiorari to review this case, but dismissed it after the parties settled. Thus, in Johnson and Milligan-Jensen, we have firmly endorsed the principle that after-acquired evidence is a complete bar to any recovery by the former employee where the employer" }, { "docid": "12911014", "title": "", "text": "& Supp.1994), and the Missouri Human Rights Act, MoANN.Stat. §§ 213.010-.137 (Vernon 1986 & Supp.1994)). The employer may alternatively argue that, had it at any time after the hiring found out about the misrepresentation(s), it would have promptly fired the plaintiff. See O’Driscoll v. Hercules, Inc., 12 F.3d 176, 177-78 (10th Cir.1994) (expanding the Summers holding from misconduct to after-acquired résumé and application fraud eases), 'petition for cert. filed, 62 U.S.L.W. 3757 (Apr. 1, 1994) (No. 93-1728); Reed v. AMAX Coal Co., 971 F.2d 1295, 1298 (7th Cir.1992) (per curiam). In some eases employers advance both arguments in the alternative. See Milligan-Jensen v. Michigan Technological University, 975 F.2d 302, 304 n. 2 (6th Cir.1992), cert. dismissed, — U.S. -, 114 S.Ct. 22, 125 L.Ed.2d 773 (1993); Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir.1992); Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409, 414-15 (6th Cir.1992); cf. Dotson v. United States Postal Service, 977 F.2d 976, 978 (6th Cir.) (per curiam) (holding that the plaintiffs employment application misrepresentations rendered him unqualified for the job without addressing whether the employer would not have hired or would have fired him therefor), cert. denied, — U.S. -, 113 S.Ct. 263, 121 L.Ed.2d 193 (1993). Obviously in job misconduct cases (like Summers), only a variant of the latter “would have fired” argument can be made. Cf. McKennon v. Nashville Banner Publishing Co., 9 F.3d 539, 542-43 (6th Cir.1993) (concluding that the plaintiffs job misconduct precluded her “claim of injury” and that consequently she was not entitled to “the grant of any relief or remedy”), cert. granted, — U.S. -, 114 S.Ct. 2099, 128 L.Ed.2d 661 (1994). 2. Courts Finding After-Acquired Evidence May Not Bar Liability The opposing camp, exemplified by the Eleventh Circuit in Wallace v. Dunn Construction Co., 968 F.2d 1174 (1992) when it openly broke ranks with Summers, allows after-acquired evidence to come in only at the remedies stage to slim down the relief available to the plaintiff. The court, having had the benefit of the Supreme Court’s exposition in Price Waterhouse (applying the Mh Healthy framework to Title" }, { "docid": "10424029", "title": "", "text": "State Farm Mutual Auto Ins. Co., 864 F.2d 700 (10th Cir.1988). This concept arises when an employee has engaged in misconduct, either prior to employment or during her employment, and then brings a claim for discriminatory discharge. At its most basic level, this doctrine holds that if “[an employer] can prove that, had it known of its employee’s misconduct, it would have terminated [his or] her employment,” the plaintiff employee may not recover on her civil rights claim. McKennon v. Nashville Banner Pub. Co., 797 F.Supp. 604, 608 (M.D.Tenn.1992). Although both defendant and relevant courts have proclaimed that this doctrine has been “adopted by the Sixth Circuit”, its adoption of this standard is not, standing alone, conclusive for the purposes of this case. Id. Although it is clear that the after-acquired evidence doctrine governs federal claims of discrimination, see Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674, 1992 U.S.App. LEXIS 15399 (6th Cir.1992), in the case at bar we deal with discriminatory discharge claims premised upon Ohio law. Thus, Ohio’s actual or prospective adoption of this doctrine is our initial concern. i. Application of the After-Acquired Evidence Doctrine in Ohio In deciding a question of state law, this court is, of course, bound by the determination of the state’s highest court. To this court’s knowledge, the Ohio Supreme Court has not addressed the after-acquired evidence doctrine. Where a state’s highest court has not spoken on a precise issue, “a federal court may not disregard a decision of the state appellate court on point, unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1485 (6th Cir.1989). This rule applies regardless of whether the appellate court decision is published or unpublished. Id. See also Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1140 (6th Cir.1986). This court’s detailed search of Ohio case law leads it to conclude that at least one Ohio appellate court has apparently applied the after-acquired evidence doctrine, albeit without use of that nomenclature and has done so in an unpublished" }, { "docid": "10343925", "title": "", "text": "“injury” and precluded any relief. Id. at 708.® It analogized the case to the hypothetical situation wherein a company fired a doctor “because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a ‘doctor’ ... the masquerading- doctor would be entitled to no relief.” Id. at 708. The court concluded that the plaintiff had no injury because he would have been legitimately fired if the employer knew of the falsifications, though, in fact, he had been fired for illegitimate reasons. Id. Thus, the fact that he had been discriminated against was irrelevant. Some courts applying this rule have stated that the civil rights statutes were not meant to protect employees who have committed misconduct of a nature that, had their employers known of it, the employer would have fired them. O’Driscoll v. Hercules, Inc., 745 F.Supp. 656, 660-61 (D.Utah 1990). The Summers methodology has been followed in other circuits in the following cases: Rich v. Westland Printers, Inc., 1993 WL 220453 (D.Md. June 9, 1993); Kravit v. Delta Airlines, Inc., 1992 WL 390236 (E.D.N.Y. Dec. 4, 1992); Redd v. Fisher Controls, 814 F.Supp. 547 (W.D.Tex.1992); O’Day v. McDonnell Douglas Helicopter Co., 784 F.Supp. 1466 (D.Ariz.1992); Sweeney v. U-Haul Co. of Chicago Metroplex, 1991 WL 1707 (N.D.Ill.1991). B. The Sixth Circuit The Sixth Circuit has adopted the Tenth Circuit’s approach, see Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302, 305 (6th Cir.1992) (if employer shows that plaintiff would have been Bred had after acquired evidence been known to employer during employee’s tenure, actual discrimination is irrelevant), but has modified it for cases involving resume fraud. In Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409 (6th Cir.1992), the court formulated a fraud type analysis for cases involving misrepresentations in a resume or employment application, as differentiated from cases involving on the job misconduct. It held that the employer would be entitled to summary judgment only if the “misrepresentation or omission was material, directly related to measuring a candidate for employment, and was relied upon by the" }, { "docid": "10424032", "title": "", "text": "in the terms of the employer’s rebuttal of the employee’s prima facie case, the court concluded: In light of appellant’s admission that he deliberately falsified his employment application, it would be impossible for him to show that his discharge was a mere pretext and that the real reason for the discharge was intentional discrimination on an unlawful basis. The trial court correctly concluded that there existed no genuine issue for trial and that appellee was entitled to judgment as a matter of law. Wilson v. Hupp Co., No. 54176, slip op. at 3, 1987 WL 20474 (8th App.Dist. Nov. 25, 1987) (per curiam). This opinion clearly suggests that Ohio appellate courts have, or at least would likely, apply the after-acquired evidence doctrine. Cf. Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674 at *2, 1992 U.S.App. LEXIS 15399 at *2 (“even if the Club was motivated to discharge Paglio because of his age, the misuse of Club funds discovered after Paglio’s retirement provided an indepen dent basis for termination. Inasmuch as the misuse of Club funds is factually uncontroverted, there exists no genuine issue of material fact and the moving party (the Club) is entitled to judgment as a matter of law.”) However, even if Ohio appellate courts have not spoken on this issue, it seems clear that the Ohio Supreme Court would likely apply the doctrine. It has been held that “[wjhere no state supreme court precedent is applicable, ‘in predicting how a state’s highest court would rule, federal courts must follow intermediate state court decisions, policies underlying the applicable, legal principles, and the doctrinal trends indicated by these policies.’” Janikowski v. Bendix Corp., 823 F.2d 945, 948 (6th Cir.1987). As a general principle of law, “an employer may defend a wrongful discharge claim on the basis of facts unknown at the time of discharge and, therefore, not an actual or inducing motive for the termination.” Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409, 412 (6th Cir.1992) (citing 56 C.J.S. Master and Servant § 51; 53 Am.Jur.2d, Master and Servant § 46; Leahey v. Federal Express Corp.," }, { "docid": "10424058", "title": "", "text": "v. Honeywell Information Systems, Inc., 955 F.2d 409, 412 (6th Cir.1992); O’Driscoll v. Hercules, Inc., 745 F.Supp. 656 (D.Utah 1990); Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674, 1992 U.S.App. LEXIS 15399 (6th Cir.1992); Summers v. State Farm Mutual Automobile Insurance Co., 864 F.2d 700 (10th Cir.1988); Washington v. Lake County, Illinois, 969 F.2d 250 (7th Cir.1992); Churchman v. Pinkerton’s Inc., 756 F.Supp. 515 (D.Kan.1991); McKennon v. Nashville Banner Pub. Co., 797 F.Supp. 604 (M.D.Tenn.1992); Dotson v. U.S. Postal Service, 794 F.Supp. 654 (E.D.Mich.1991). Nevertheless, the defendant here advances the argument that “recovery on all claims is precluded pursuant to the after-acquired evidence rule.” (Defendant AMR Services Corporation’s Brief in Reply to Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment, Docket # 40 at 2) Consequently, AMR argues that the plaintiff’s claim of intentional infliction of emotion distress is also barred by the after-acquired evidence doctrine. On this point, the court is not persuaded. The after-acquired evidence doctrine stands for the proposition that the injury complained of, (in this case discharge), would have and should have occurred despite the discrimination which allegedly occurred. Thus: [when] falsification of the employment application, if discovered during her employment, would have resulted in [plaintiff’s] termination, it becomes irrelevant whether or not she was discriminated against. Milligan-Jensen, 975 F.2d at 305. This is true because “plaintiff suffered no legal damage by being fired.” Id. See also Summers v. State Farm Mutual Auto Ins. Co., 864 F.2d 700, 708 (10th Cir.1988). (“[AJfter-acquired evidence ... is relevant to [plaintiffs] claim of ‘injury’, and does itself preclude the grant of an present relief.”) As noted above, the after-acquired evidence doctrine at its most basic level precludes recovery if the injury complained of would have occurred if the after-acquired evidence had been known. Applying this paradigm to the intentional tort at issue here would result in the following reasoning: that the emotional distress would have been inflicted earlier if the defendant had known plaintiff engaged in resume fraud and misconduct during employment. Under this model, plaintiff is injured nonetheless and that injury was neither caused" }, { "docid": "10424033", "title": "", "text": "Club funds is factually uncontroverted, there exists no genuine issue of material fact and the moving party (the Club) is entitled to judgment as a matter of law.”) However, even if Ohio appellate courts have not spoken on this issue, it seems clear that the Ohio Supreme Court would likely apply the doctrine. It has been held that “[wjhere no state supreme court precedent is applicable, ‘in predicting how a state’s highest court would rule, federal courts must follow intermediate state court decisions, policies underlying the applicable, legal principles, and the doctrinal trends indicated by these policies.’” Janikowski v. Bendix Corp., 823 F.2d 945, 948 (6th Cir.1987). As a general principle of law, “an employer may defend a wrongful discharge claim on the basis of facts unknown at the time of discharge and, therefore, not an actual or inducing motive for the termination.” Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409, 412 (6th Cir.1992) (citing 56 C.J.S. Master and Servant § 51; 53 Am.Jur.2d, Master and Servant § 46; Leahey v. Federal Express Corp., 685 F.Supp. 127, 128 (E.D.Va.1988)). The after-acquired evidence doctrine is gaining increasing acceptance among state courts. See, e.g., Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409 (6th Cir.1992) (Michigan law); O’Driscoll v. Hercules, Inc., 745 F.Supp. 656 (D.Utah 1990) (Utah law). In courts applying federal law, the trend is clearly in favor of its application. See, e.g., Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674 1992 U.S.App. LEXIS 15399 (6th Cir.1992) (ADEA and, perhaps, Ohio Rev. Code § 4112.02); Summers v. State Farm Mutual Automobile Insurance Co., 864 F.2d 700 (10th Cir.1988); Washington v. Lake County, Illinois, 969 F.2d 250 (7th Cir.1992) (Title VII); Churchman v. Pinkerton’s Inc., 756 F.Supp. 515 (D.Kan.1991) (Title VII); McKennon v. Nashville Banner Pub. Co., 797 F.Supp. 604 (M.D.Tenn.1992) (ADEA); Dotson v. U.S. Postal Service, 794 F.Supp. 654 (E.D.Mich.1991), aff'd without opinion, 961 F.2d 1576 (Table) (6th Cir.1992) (discrimination upon the basis of handicap under the Rehabilitation Act of 1973). While the trend in state law is, of course, highly relevant, for our purposes the trend in" }, { "docid": "10424028", "title": "", "text": "fact had tended to emasculate summary judgment as an effective procedural device. Street, supra, at 1476. The court enunciated the following “new era” principles, among others: as on federal directed verdict motions, the “scintilla” rule applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion; the respondent cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must “present affirmative evidence in order to defeat a properly supported motion for summary judgment”; the trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact. Id. at 1479-1480 (footnotes and citations omitted). With these standards in mind, the court shall address the defendant’s motion. III. LAW AND ANALYSIS A. The After-Acquired Evidence Doctrine The defendant’s first contention is that the summary judgment is appropriate on all remaining counts on the basis of what has come to be called the after-acquired evidence doctrine. See e.g., Summers v. State Farm Mutual Auto Ins. Co., 864 F.2d 700 (10th Cir.1988). This concept arises when an employee has engaged in misconduct, either prior to employment or during her employment, and then brings a claim for discriminatory discharge. At its most basic level, this doctrine holds that if “[an employer] can prove that, had it known of its employee’s misconduct, it would have terminated [his or] her employment,” the plaintiff employee may not recover on her civil rights claim. McKennon v. Nashville Banner Pub. Co., 797 F.Supp. 604, 608 (M.D.Tenn.1992). Although both defendant and relevant courts have proclaimed that this doctrine has been “adopted by the Sixth Circuit”, its adoption of this standard is not, standing alone, conclusive for the purposes of this case. Id. Although it is clear that the after-acquired evidence doctrine governs federal claims of discrimination, see Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674, 1992 U.S.App. LEXIS 15399 (6th Cir.1992), in the case at bar we deal with discriminatory discharge claims premised upon Ohio law. Thus, Ohio’s actual or prospective" }, { "docid": "10424057", "title": "", "text": "easily establish that the prevarication is grounds for dismissal, it is this court’s opinion that the proof offered by the plaintiff should not be limited solely to proof of other applicants’ or employees’ “resume fraud”, but may encompass other instances of material falsehood which, when discovered by the employer, did not result in termination. The plaintiff, however, has come forward with no evidence of such instances, thus compelling this court to conclude that the falsification of this material item was grounds for, and would have resulted in immediate termination. The fact of plaintiff’s application falsification, when combined with her misconduct while employed (for which plaintiff offers no excuse or rebuttal) obliges this court to conclude that there is no genuine issue of material fact and that defendant is entitled to summary judgment as a matter of law. It is important now that this court establish the perimeters of its judgment. It is clear that the plaintiff’s discriminatory discharge claims (counts one and four) are barred by virtue of the after-acquired evidence doctrine. See, e.g., Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409, 412 (6th Cir.1992); O’Driscoll v. Hercules, Inc., 745 F.Supp. 656 (D.Utah 1990); Paglio v. Chagrin Valley Hunt Club Corp., 1992 WL 144674, 1992 U.S.App. LEXIS 15399 (6th Cir.1992); Summers v. State Farm Mutual Automobile Insurance Co., 864 F.2d 700 (10th Cir.1988); Washington v. Lake County, Illinois, 969 F.2d 250 (7th Cir.1992); Churchman v. Pinkerton’s Inc., 756 F.Supp. 515 (D.Kan.1991); McKennon v. Nashville Banner Pub. Co., 797 F.Supp. 604 (M.D.Tenn.1992); Dotson v. U.S. Postal Service, 794 F.Supp. 654 (E.D.Mich.1991). Nevertheless, the defendant here advances the argument that “recovery on all claims is precluded pursuant to the after-acquired evidence rule.” (Defendant AMR Services Corporation’s Brief in Reply to Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment, Docket # 40 at 2) Consequently, AMR argues that the plaintiff’s claim of intentional infliction of emotion distress is also barred by the after-acquired evidence doctrine. On this point, the court is not persuaded. The after-acquired evidence doctrine stands for the proposition that the injury complained of, (in this case discharge)," }, { "docid": "10424036", "title": "", "text": "S.Ct. 554, 24 L.Ed.2d 495 (1969). In light of Ohio’s general endorsement of the federal courts’ interpretation of anti-discrimination laws, the Ohio Supreme Court’s decision to apply the after-acquired evidence doctrine to its own anti-bias statutes, itself far from revolutionary, seems a logical conclusion. Accordingly, this court holds that the Ohio Supreme Court would employ the after-acquired evidence doctrine in state discrimination claims and, therefore, this court shall do the same. B. Application of the After-Acquired Evidence Doctrine to this Case With the applicability of this doctrine established, it must be determined whether this doctrine would bar plaintiff’s discrimi nation claims. As noted by the defendant, the after-acquired evidence doctrine may be divided into two categories depending upon the nature of the misconduct engaged in by the employer. The first category of cases may roughly be described as “would have hired” cases and essentially involve “resume fraud”. In such a case, the employee falsifies his or her employment application or resume. If this falsification is later discovered, “summary judgment is appropriate where the misrepresentation or omission was material, directly related to measuring a candidate for employment, and was relied upon by the employer in making the hiring decision.” Johnson v. Honeywell Informations Systems, Inc., 955 F.2d at 415. In other words, the question is whether the plaintiff/employee would have been hired had he or she truthfully filled out his application or resume. See e.g., Washington v. Lake County, Ill., 969 F.2d 250, 254 (7th Cir.1992) (cited with approval in Milligan-Jensen v. Michigan Tech. Univ., 975 F.2d 302, 305 n. 3 (6th Cir.1992)). (“The first hypothetical question is whether the [employer] would have hired [the plaintiff/employee] if it had known [the truth].”); Churchman v. Pinkerton’s Inc., 756 F.Supp. 515, 521 (D.Kan.1991) (cited with approval in Johnson, 955 F.2d at 414) (“plaintiff would not have been hired if she had truthfully completed the employment application____”) The second category is often characterized as “would have fired” cases and most often arises when an employee, post-hire, engages in misconduct, although resume fraud cases may also be analyzed under the “would have fired” standard. See" }, { "docid": "10424053", "title": "", "text": "or proof of hiring practices in fact. Essentially, the most common point of contention will thus be the effect of the material misrepresentation. Simply because one misrepresented a material fact does not, ipso facto, constitute proof that that person would have been fired for that misrepresentation. For instance, a football player may well be hired in spite of his knee impairment. In that same vein, however, a foot-patrol policeman may be hired regardless of that injury but would be fired if his failure to apprise his employer of that injury came to light. Thus, we now turn to proof of the hypothetical effect of plaintiffs misrepresentations and the proof necessary to overcome summary judgment on that proof. Once the materiality of the application question or resume representation is established, we must turn to proof that the defendant would have fired plaintiff had the truth been known or had the falsification become known, two separate inquiries. An employer may properly invoke the after-acquired evidence doctrine in a “would have fired” context by proof of two facts, together or in the alternative. First, the defendant may establish that it would have fired the plaintiff had evidence of the truth (but not the falsehood itself) come to light during employment. For instance, the defendant here could offer proof that it would have fired the plaintiff when she became injured. Second, it may establish that it would have terminated the plaintiff because of the falsehood, the employee misconduct, itself. In the case at bar, the defendant could offer proof that the plaintiff’s lie, in its own right, would cause immediate termination. This analysis is borne out in Sixth Circuit case law. In Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.1992), the defendant discovered, after commencement of the Title VII case, that the plaintiff had omitted a drunk driving conviction from her employment application. Before the after-acquired evidence doctrine was the law of this Circuit, the trial judge found that the employer would have dismissed the plaintiff had it known of the falsification, but nevertheless found in favor of the plaintiff. 767 F.Supp." }, { "docid": "10424054", "title": "", "text": "together or in the alternative. First, the defendant may establish that it would have fired the plaintiff had evidence of the truth (but not the falsehood itself) come to light during employment. For instance, the defendant here could offer proof that it would have fired the plaintiff when she became injured. Second, it may establish that it would have terminated the plaintiff because of the falsehood, the employee misconduct, itself. In the case at bar, the defendant could offer proof that the plaintiff’s lie, in its own right, would cause immediate termination. This analysis is borne out in Sixth Circuit case law. In Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (6th Cir.1992), the defendant discovered, after commencement of the Title VII case, that the plaintiff had omitted a drunk driving conviction from her employment application. Before the after-acquired evidence doctrine was the law of this Circuit, the trial judge found that the employer would have dismissed the plaintiff had it known of the falsification, but nevertheless found in favor of the plaintiff. 767 F.Supp. 1403, 1410 (W.D.Mich.1991). In so doing, the court found as a matter of fact that “mere conviction on the driving offense would not have resulted in termination. Rather, it was the falsification of the application that was the critical factor.” 975 F.2d 302, 303 n. 1. On the basis of these facts, the Sixth Circuit reversed the district court and remanded with instruction to enter judgment for the defendant. Id. at 304. Thus, it seems clear that falsification, standing alone, may provide grounds for the application of the after-acquired evidence doctrine. See Id. at note 2 (“it is immaterial whether the appellee would have been terminated for the falsification itself or the underlying misrepresentation.”) In other words, that the truth (but not the falsehood) did not lead to dismissal may be immaterial based upon the argument advanced by the defendant. Here we must remember that every falsehood has two components, the prevarication itself and the underlying fact misrepresented or omitted. Either component could give cause for immediate termination. See Milligan-Jensen, at 304 note 2 (“it" } ]

[ { "docid": "5231792", "title": "", "text": "to pay the outstanding hospital bills and provide future payment for “any and all medical treatment related to [Mr. Ling’s] breathing difficulties.” In so ruling, the ALJ concluded that the regulations were broad enough to encompass COPD as an “ancillary” condition to pneu-moconiosis. The ALJ found the opinions submitted by the petitioners’ experts to be unpersuasive to the extent that they failed to acknowledge that pneumoconiosis and COPD manifest themselves in the same outward symptoms. Gulf & Western and Old Republic filed an administrative appeal of the Decision and Order. On February 21, 1997, the BRB affirmed the ALJ’s ruling on the strength of our opinion in Doris Coal Co. v. Director, OWCP, 938 F.2d 492 (4th Cir.1991). A subsequent motion for reconsideration was denied by the BRB on June 25, 1997. Gulf & Western and Old Republic now petition us for review of the BRB’s dispositive orders. II. In accordance with the established principles governing judicial oversight of actions undertaken by federal administrative agencies, our review of this matter is confined to the grounds actually invoked by the DOL in support of its decision. SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained”). To ascertain the bases underlying the DOL’s exercise of its power, we look exclusively to the grounds relied upon by the BRB, the highest administrative tribunal. See 33 U.S.C. § 921(c) (jurisdiction of the courts of appeals limited to reviewing final orders of the BRB). We must therefore examine whether the BRB, in affirming the ALJ’s award of medical benefits to Mr. Ling, properly applied our precedent in Doris Coal to the facts at hand. In so doing, we must address the petitioners’ contention that the intervening decision of the Supreme Court in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), implicitly overruled Doris Coal. A. In Doris Coal, the claimant, Noah Stilt-ner, had been adjudged" } ]

[ { "docid": "23248312", "title": "", "text": "in this case) unless statutorily changed. Petitioners rely on the Supreme Court decision of Director, OWCP, Department of Labor v. Greenwich Collieries [Ondecko], 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), which struck down a judicially created presumption in conflict with § 7(c) of the APA because it attempted to place the burden .of proof on other than the claimant. Respondents, on the other hand, argue that the Doris Coal presumption does not violate the rule of Greenwich Collieries and is therefore consistent with § 7(c) of the APA and the law of the Sixth Circuit. Respondents argue that the Doris Coal presumption merely reallocates the burden of production, and Greenwich Collieries only prohibits a reallocation of the burden of proof. 1.Standard of Review The court of appeals has a very narrow scope of review over decisions of the Benefits Review Board. Cah-Glo Coal Company v. Yeager, 104 F.3d 827, 830 (6th Cir.1997). The AL J hears the evidence and makes findings of fact. Director, OWCP, United States Department of Labor v. Quarto Mining Company, 901 F.2d 532 (6th Cir.1990). The Benefits Review Board then reviews the findings of fact and conclusions of law of the AL J and may set them aside “only if they are not supported by substantial evidence in the record considered as a whole or if they are not in accordance with law.” Quarto, supra, at 536. The court of appeals’ review of the Benefits Review Board is then “limited to a determination whether the outcome below is supported by substantial evidence and was reached in conformance with applicable law.” York v. Benefits Review Board, 819 F.2d 134, 136 (6th Cir.1987). This circuit has stated that the court of appeals must affirm the Board’s decision if the Board has not committed any legal errors or exceeded its statutory scope of review of the ALJ’s factual determinations. See Pyro Mining Co. v. Slaton, 879 F.2d 187 (6th Cir.1989). Furthermore, as in the court of appeals’ review of a district court decision, the court of appeals may affirm the decision of the Board on grounds" }, { "docid": "5231798", "title": "", "text": "impairments comprising Stiltner’s pneumoconiosis failed to at least aggravate his symptoms. The time for that argument had passed with the prior adjudication of disability, which necessarily entailed a finding that these same diseases and/or impairments aggravated Stiltner’s symptoms to the extent that he was rendered unable to work. In the absence of sufficient evidence to the contrary, we concluded that Stiltner had adequately proved his entitlement to the benefits sought. B. Gulf & Western and Old Republic maintain that, in light of the intervening 1994 decision of the Supreme Court in Greenwich Collieries, a remand is necessary for the ALJ to reweigh all of the evidence and determine anew, without regard to the pri- or finding of disability, whether Mr. Ling’s medical bills are related to, or at least aggravated by, his pneumoconiosis. Although we agree that the claim must be remanded, we disagree with the petitioners’ contention that the prior adjudication is without relevance. 1. In Greenwich Collieries, the Supreme Court invalidated the DOL’s “true doubt” rule, which had operated to award disability benefits under the BLBA and LHWCA to claimants where the evidence was determined to be “equally probative.” The rule was judged to be inconsistent with § 7(c) of the Administrative Procedure Act (APA), which provides that “[ejxcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof.” 5 U.S.C. § 556(d). Upon concluding that the DOL’s rules and policies are required to comport with the APA, 512 U.S. at 270-71, 114 S.Ct. 2251, the Court held that the “true doubt” rule impermissi-bly shifted from the claimant to the employer the burden of persuading the fact finder that its position should prevail. Id. at 281,114 S.Ct. 2251. According to the petitioners, the Doris Coal presumption acts in a fashion similar to the “true doubt” rule, effectively shifting the burden to employers and their insurers to persuade the factfinder that the claimant’s pulmonary impairments are not related to, or at least aggravated by, his pneumoconiosis. This argument misconstrues the nature of the presumption. In each case where a miner seeks an" }, { "docid": "5231811", "title": "", "text": "hold Doris Coal and Old Republic liable for unrelated medical services that had been billed together with treatments for Stiltner’s pulmonary infirmities. Id. at 497-98, 96 S.Ct. 2882. . This is a point that we have made on numerous occasions. See, e.g., Richardson v. Director, OWCP, 94 F.3d 164, 166 n. 2 (4th Cir.1996)(\"COPD, if it arises out of coal-mine employment, clearly is encompassed within the legal definition of pneumoconiosis, even though it is a disease apart from clinical pneumoconiosis.”) (citing Worth v. Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir.1995)). It bears repeating, however. See Richardson, 94 F.3d at 166-67 & n. 2 (noting the ongoing failure of lawyers, physicians, and AUs to distinguish the legal definition from the clinical). . We observed that \"[a]ny other result would require the miner to prove again that his respiratory ailment is related to his coal mine employment- [Ojperators may not require the miner to prove again that he has pneumoconiosis each time he makes a claim for health benefits.” 938 F.2d at 497. . Although the Sixth Circuit concluded that the Doris Coal presumption passes muster under Greenwich Collieries, it nonetheless declined to adopt our rule as its own. District Judge Dowd, writing for the panel majority, reasoned that the presumption is inconsistent with what he perceived to be the Supreme Court’s “suggestion” that only statutory presumptions be given effect in administrative proceedings. Seals, 147 F.3d at 513 (citing Greenwich Collieries at 280-81, 114 S.Ct. 2251). Judge Boggs, writing separately, disagreed with Judge Dowd on this point. Id. at 517 (Boggs, J., concurring in the judgment). With all respect to Judge Dowd, we do not read Greenwich Collieries nearly so broadly. The Supreme Court did express its concern that individual agencies not create, on their own authority, procedural devices in conflict with the APA, there by frustrating Congress's goal of promoting uniformity of practice and procedure among the numerous administrative bodies. Nothing in Greenwich Collieries, however, prohibits the federal courts from creating evidentiary presumptions in furtherance of the public policy against \"placing] a significant burden on the Black Lung" }, { "docid": "23248314", "title": "", "text": "other than those stated by the Board. See Old Ben Coal Co. v. Luker, 826 F.2d 688 (7th Cir.1987). 2. Statutory Burdens Applicable to the Black Lung Benefits Act Section 7 of the APA states that “[e]x-cept as otherwise provided by statute, the proponent of a rule or order has the burden of proof.” 5 U.S.C. § 556(d). The United States Supreme Court has held that this burden of proof provision applies to adjudications under the Black Lung Benefits Act. Director, OWCP, Department of Labor, v. Greenwich Collieries [Ondecko], 512 U.S. 267, 270, 114. S.Ct. 2251, 2254, 129 L.Ed.2d 221 (1994). There, the Supreme Court stated that its prohibition of certain judicially created presumptions would not overburden Black Lung claimants because Congress realized that these claims could be hard to prove, and so created certain statutory presumptions to ease claimants’ burdens. Id. at 280, 114 S.Ct. 2251. In conclusion, the Court held that the Department of Labor Administrative Law Judges cannot formulate additional presumptions which allocate the burden of proof in a manner that is in conflict with the APA. Id. at 281,114 S.Ct. 2251. 3. Does the Doris Coal presumption improperly reallocate the burden of proof? In this case, the ALJ and the Board were confronted with a situation in which the first stage of the Black Lung Benefits Act analysis had been settled by agreement. The parties had agreed that Seals was totally disabled by pneumoconiosis and that Petitioners were the responsible party. Absent this agreement, the first stage would have required Seals to prove that he was totally disabled by pneumoconiosis. 20 C.F.R. § 727.203. Here, however, because the parties agreed that Seals was totally disabled from pneumoconiosis and that Glen Coal was the responsible operator, the dispute involved the second stage determination of whether Petitioners had to pay certain of Seals’ medical bills. Faced with this situation, the ALJ followed the Fourth Circuit case of Dons Coal. The Doris Coal court recognized that in the second stage, the miner had the “burden” of proving that the bills were related to the pneumoconiosis. However, the court held" }, { "docid": "5231803", "title": "", "text": "that the claimant still bears the burden of proof to show by a preponderance of the evidence that his bills are related to his pneumoconiosis ... [,] but the claimant is relieved of the requirement of producing additional evidence of this relationship. He may rely on the first stage determination to show the relatedness of the condition and the medical treatment at issue. Id. We believe that the above passages accurately state the scope and effect of the Doris Coal presumption. In as much as the presumption does not shift the burden of proof in medical benefit cases from the claimant to the party opposing the claim, it is not contrary to the Supreme Court’s decision in Greenwich Collieries. 2. Mr. Ling, like Stiltner before him, submitted medical bills evidencing treatment for respiratory ailments; he had arrived at the hospital complaining of coughing, wheezing, and shortness of breath. Mr. Ling’s breathing difficulties were attributed by his physician to specific pulmonary disorders, i.e., COPD and clinical pneumoconiosis. This diagnosis, as the BRB correctly recognized, was sufficient to invoke the Doris Coal presumption that Mr. Ling’s pulmonary condition- — the diseases with which he was afflicted, manifested in symptoms of respiratory distress- — -was related to, or at least aggravated by, his legal pneumoconiosis. The BRB, however, construed the Denis Coal presumption as shifting the burden of proof to the employer, which, under Greenwich Collieries, it may not do. See BRB’s Decision and Order of February 21, 1997, at 3 (“We disagree with employer’s argument that the administrative law judge erred in shifting the burden of proof to employer”). Although the BRB may have reached the same result had it correctly applied the Doris Coal presumption, we think it prudent to remand the claim to the BRB for reconsideration. In so doing, we express our hope that Mr. Ling’s claim, now pending for nearly ten years, will receive the expeditious treatment that it deserves. III. We conclude that the Doris Coal presumption remains a valid, rational eviden-tiary device that serves the important public purpose of facilitating the administrative processing of medical benefit" }, { "docid": "17255093", "title": "", "text": "treat the covered disorder, or “was not for a pulmonary disorder at all.” Id. The regulation codifies the so-called Doris Coal presumption, named for a Fourth Circuit case that adopted the presumption before it was included in the new regulations. See Doris Coal Co. v. Director, OWCP, 938 F.2d 492, 496-97 (4th Cir.1991) (“Since most pulmonary disorders are going to be related or at least aggravated by the presence of pneumoconiosis, when a miner receives treatment for a pulmonary disorder, a presumption arises that the disorder was caused or at least aggravated by the miner’s pneumoconiosis, making the employer liable for the medical costs.”). The Fourth Circuit later reaffirmed and clarified the presumption, using language that was mirrored in the new regulation. See Gulf & W. Indus. v. Ling, 176 F.3d 226, 233 (4th Cir.1999) (holding that the employer can rebut the presumption by producing “credible evidence that the treatment rendered is for a pulmonary disorder apart from those previously associated with the miner’s disability, or is beyond that necessary to effectively treat a covered disorder, or is not for a pulmonary disorder at all”). NMA argues that the regulation codifying the judicial presumption is retroactive as applied to pending cases, and we agree. The rule is not reflected in the prior regulation, even though it may reflect the Secretary’s longstanding policy. See Doris Coal, 938 F.2d at 496-97. Moreover, the rule contradicts the Sixth Circuit’s holding in Glen Coal Co. v. Seals, 147 F.3d 502 (6th Cir.1998). In that case, the court held that the Doris Coal presumption is permissible under the APA, because it only reallocates the burden of production, not the burden of proof. Id. at 512-13. Nonetheless, the court struck down the presumption as inconsistent with Sixth Circuit law, in part because it found that the creation of such judicial presumptions ran afoul of the BLBA’s statutory goal of uniformity. Id. at 513-14 (citing Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994)). The regulation changes the outcome for cases that have already been filed in'the Sixth Circuit and any" }, { "docid": "23248310", "title": "", "text": "ALJ ordered Petitioners to pay for both the bronehodilators and the antibiotics prescribed for Seals. Petitioners appealed this decision to the Benefits Review Board. The Board upheld the decision of the ALJ on the grounds that it was supported by substantial evidence and there was no reversible error. Further, the Board upheld the application of the Doris Coal presumption to this case, and also upheld all of the ALJ’s findings of fact with regard to the four doctors’ reports. One member of the Board, however, wrote a separate concurrence to the Board’s affirmance of the ALJ’s order. While believing that the “court-created” presumption was contrary to the holding of the United States Supreme Court in Director, OWCP Department of Labor v. Greenwich Collieries [Ondecko], 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994)(elaimant must prove his case by a preponderance of the evidence, in accordance with § 7(c) of the APA), the member wrote that he was concurring in the opinion because the substantial evidence supported the ALJ’s award of medical benefits. An appeal was subsequently taken to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit transferred the matter to this Court pursuant to 28 U.S.C. § 1631 upon discovery that Seals’ coal mine work occurred in the Sixth Circuit, in Kentucky. Before this Court is therefore an issue of first impression of whether the Fourth Circuit Doris Coal presumption is consistent with the law of the Sixth Circuit, as governed by § 7(c) of the APA. PROPRIETY OF APPLICATION OF THE DORIS COAL PRESUMPTION IN THE SIXTH CIRCUIT Petitioners argue that this Court should vacate the order of the ALJ in this case and remand for proceedings under Sixth Circuit law, as governed by § 7(c) of the APA. Petitioners argue that the Fourth Circuit presumption relied upon by the ALJ is improper as a matter of law because it shifts the burden of proof to Petitioners, in conflict with § 7(c) of the APA, which states that the burden of proof is on the proponent of a rule or order (i.e. Seals" }, { "docid": "23147783", "title": "", "text": "[i]t is apparent from the voluminous medical reports that Dr. Woolum had [Decedent] under close' and constant treatment over a period of fourteen years which provided him with an outstanding opportunity to determine the exact nature and cause of his patient’s pulmonary and respiratory impairment with reliance upon repeated tests, evaluations, and observations of response to proscribed medicines and therapy. (J.A. at 61.) This time, Petitioner appealed to the BRB. Although the BRB initially affirmed ALJ Kichuk, the BRB remanded the case to ALJ Kichuk following Petitioner’s motion for reconsideration. Specifically, the BRB found that ALJ Kichuk based his decision on the “true doubt” test that the Supreme Court found impermissible in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). On the second remand, Petitioner introduced evidence that radiologists who examined Decedent’s x-rays found no evidence of pneumoconiosis. Importantly, Petitioner offered the analysis of Dr. A. Dahhan, a physician board-certified in internal medicine and pulmonary medicine who was one of the many doctors to physically examine Decedent in the early 1980s. Dahhan stated that Decedent died due to an upper GI bleed, possibly caused by the steroids he took for bronehospasms. After reviewing all x-rays and medical records, Dahhan concluded: There is insufficient objective evidence to justify the diagnosis of coal worker’s pneumoconiosis.... [H]is death was contributed to greatly by his advanced chronic obstructive lung disease with no evidence that his death was contributed to or hastened by his exposure to coal dust or coal worker’s pneumoconiosis. (J.A. at 280.) Dr. Dale Sargent, board certified in pulmonary diseases and critical care, rendered an opinion similar to Dah-han’s. Sargent noted that Decedent’s blood gases showed severe hypoxemic hy-percapnic respiratory failure on a chronic basis — -a finding suggesting COPD due to smoking, not pneumoconiosis. According to Sargent: In my opinion, with a reasonable degree of medical certainty, [Decedent] had severe chronic obstructive pulmonary disease secondary to cigarette smoking. This is the diagnosis put forth by Dr. Woolum. In fact, coal worker’s pneumo-coniosis is not mentioned in Dr. Woo-lum’s diagnostic impressions either at the" }, { "docid": "5231804", "title": "", "text": "to invoke the Doris Coal presumption that Mr. Ling’s pulmonary condition- — the diseases with which he was afflicted, manifested in symptoms of respiratory distress- — -was related to, or at least aggravated by, his legal pneumoconiosis. The BRB, however, construed the Denis Coal presumption as shifting the burden of proof to the employer, which, under Greenwich Collieries, it may not do. See BRB’s Decision and Order of February 21, 1997, at 3 (“We disagree with employer’s argument that the administrative law judge erred in shifting the burden of proof to employer”). Although the BRB may have reached the same result had it correctly applied the Doris Coal presumption, we think it prudent to remand the claim to the BRB for reconsideration. In so doing, we express our hope that Mr. Ling’s claim, now pending for nearly ten years, will receive the expeditious treatment that it deserves. III. We conclude that the Doris Coal presumption remains a valid, rational eviden-tiary device that serves the important public purpose of facilitating the administrative processing of medical benefit claims by coal miners previously adjudged entitled to disability payments under the BLBA. Nevertheless, the presumption must be applied in a manner that does not impermissibly shift the burden of proving the miner’s claim to the employer. The petition for review is granted, and the claim is remanded to the Benefits Review Board for further proceedings consistent with this opinion. . PETITION FOR REVIEW GRANTED, AND CLAIM REMANDED. . Mr. Ling is unrepresented by counsel. The Director of the Office of Workers’ Compensation Programs for the Department of Labor participates in this appeal as co-respondent, pursuant to 30 U.S.C. § 932(k), which provides that \"[t]he Secretary [of Labor] shall be a party in any proceeding relative to a claim for benefits under this part [of the Black Lung Benefits Act].” . See 20 C.F.R. § 725.493(a)(1) (1998) (imposing liability for benefits on the mine operator or other qualifying employer with which the claimant has had the most recent periods of cumulative employment of not less than one year). .See 30 U.S.C. § 901(a)(purpose of the" }, { "docid": "15083794", "title": "", "text": "23 F.3d 1235, 1238 (7th Cir.1994) (quoting Old Ben Coal Co. v. Battram, 7 F.3d 1273, 1277 (7th Cir.1993), overruled by, Director, OWCP v. Greenwich Collieries, - U.S.-, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994)). According to the BRB, “True doubt” [was] said to exist if equally probative but contradictory medical documents ... are presented in the record, and selection of one set of facts would resolve the case against the claimant but the selection of the contradictory set of facts would resolve the case for the claimant. Skukan v. Consolidation Coal Co., 993 F.2d 1228, 1234 (6th Cir.1993) (quoting Conley v. Roberts & Schaefer Co., 7 BLR 1-309, 1-312 n.4 (Benefits Review Bd.1984)), vacated, - U.S. -, 114 S.Ct. 2732, 129 L.Ed.2d 854 (1994). In such a situation, the BRB’s “true doubt rule” required that “the evidence must be resolved in favor of the claimant.” Zeig-ler Coal, 23 F.3d at 1238 (quoting Freeman United Coal Mining Co. v. Office of Workers Compensation Program, 988 F.2d 706, 710 (7th Cir.1993), vacated, - U.S. -, 114 S.Ct. 2732, 129 L.Ed.2d 854 (1994)). “The [BRB] ... ‘consistently upheld the principle that, where true doubt exists, that doubt shall be resolved in favor of the claimant.’” Mullins, 484 U.S. at 144 n. 12, 108 S.Ct. at 432 n. 12 (quoting Lessar v. C.F. & I. Steel Corp., 3 BLR 1-63, 1-68 (Benefits Review Bd.1981)). However, in Director, OWCP v. Greenwich Collieries, - U.S. -, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), the Supreme Court considered the validity of the “true doubt rule.” First, the Court concluded that the burden of proof provision set forth in § 7(c) of the Administrative Procedure Act (“APA”), 5 U.S.C. § 556(d), applies to adjudications under the Black Lung Benefits Act. Id. at -, 114 S.Ct. at 2254. Second, the Court stated: Under the [BRB’s] true doubt rule, when the evidence is evenly balanced the claimant wins. Under § 7(c), however, when the evidence is evenly balanced, the benefits claimant must lose. Accordingly, we hold that the true doubt rule violates § 7(c) of the APA. Id. at-," }, { "docid": "17255094", "title": "", "text": "disorder, or is not for a pulmonary disorder at all”). NMA argues that the regulation codifying the judicial presumption is retroactive as applied to pending cases, and we agree. The rule is not reflected in the prior regulation, even though it may reflect the Secretary’s longstanding policy. See Doris Coal, 938 F.2d at 496-97. Moreover, the rule contradicts the Sixth Circuit’s holding in Glen Coal Co. v. Seals, 147 F.3d 502 (6th Cir.1998). In that case, the court held that the Doris Coal presumption is permissible under the APA, because it only reallocates the burden of production, not the burden of proof. Id. at 512-13. Nonetheless, the court struck down the presumption as inconsistent with Sixth Circuit law, in part because it found that the creation of such judicial presumptions ran afoul of the BLBA’s statutory goal of uniformity. Id. at 513-14 (citing Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994)). The regulation changes the outcome for cases that have already been filed in'the Sixth Circuit and any other circuit that would have rejected Doris Coal. Our holding is, of course, not intended to affect the law in the Fourth Circuit or any other circuit that -would have embraced the Doris Coal presumption. That judicial presumption remains the law in the circuits that adopt it. Our holding simply prevents the Secretary from imposing the presumption, in the form of a new regulation, on all of the other circuits for cases that were filed before the regulations were promulgated. 20 C.F.R. § 725.101(a)(6): The rule propounded in § 725.101(a)(6) defines “benefits” to include any expenses related to the medical examination and- testing authorized pursuant to § 725.406, which requires the Department of Labor to provide each applicant for benefits with a pulmonary evaluation at no expense to the miner. The new § 725.101(a)(6) conforms the regulatory definition of “benefits” to § 725.406, both the old and new versions. The prior version of § 725.406(c) already provided that the cost of the medical examination would be paid by the Fund and that the Fund would" }, { "docid": "15083793", "title": "", "text": "x-ray evidence of record is conflicting. Highly qualified physicians disagree on the interpretation of these most recent x-rays, which apparently are at best borderline in showing either the presence or absence of pneumoconiosis. Numerically, there are more negative than positive readings of these most recent x-rays, but a rational interpretation of the pattern of recent x-ray evidence suggests there is a genuine doubt as to the presence or absence of pneumoconiosis. Therefore, as Claimant is entitled to have such doubt resolved in his favor, I find that the x-ray evidence is sufficient to support invocation of the presumption pursuant to Section 727.203(a)(1). J.A. 17. Although the ALJ did not explicitly label his finding as such, the AL J’s weighing of the x-ray evidence of record involved the “true doubt rule.” The “true doubt rule” is a rule created by the BRB which “operate[d] to give the miner the benefit of the doubt when the evidence in favor of the miner and the employer is ‘equally probative.’” Zeigler Coal Co. v. Office of Workers’ Compensation Programs, 23 F.3d 1235, 1238 (7th Cir.1994) (quoting Old Ben Coal Co. v. Battram, 7 F.3d 1273, 1277 (7th Cir.1993), overruled by, Director, OWCP v. Greenwich Collieries, - U.S.-, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994)). According to the BRB, “True doubt” [was] said to exist if equally probative but contradictory medical documents ... are presented in the record, and selection of one set of facts would resolve the case against the claimant but the selection of the contradictory set of facts would resolve the case for the claimant. Skukan v. Consolidation Coal Co., 993 F.2d 1228, 1234 (6th Cir.1993) (quoting Conley v. Roberts & Schaefer Co., 7 BLR 1-309, 1-312 n.4 (Benefits Review Bd.1984)), vacated, - U.S. -, 114 S.Ct. 2732, 129 L.Ed.2d 854 (1994). In such a situation, the BRB’s “true doubt rule” required that “the evidence must be resolved in favor of the claimant.” Zeig-ler Coal, 23 F.3d at 1238 (quoting Freeman United Coal Mining Co. v. Office of Workers Compensation Program, 988 F.2d 706, 710 (7th Cir.1993), vacated, - U.S. -, 114" }, { "docid": "23248359", "title": "", "text": "the Fourth Circuit’s ruling in Doris Coal, it is not surprising that he saw no need to develop or pursue this issue at trial. In the absence of an alternative basis for ruling, I would remand this case to the ALJ for a determination of whether a scientific or evidentiary basis exists to support such a presumption. The ALJ may find, for example, that scientific proof exists that “most pulmonary disorders are going to be related [to] or at least aggravated by the presence of pneumoconio-sis,” as the Fourth Circuit in Doris Coal believed to be true. Id., 938 F.2d at 496. A finding that such interrelationships can rarely be confirmed or rebutted with any certainty by present medical technology might also serve as an evidentiary basis for our relying on such a presumption. On remand the ALJ will have the opportunity to develop a record as to whether an evidentiary basis exists to support a Doris Coal-like presumption and to decide whether or not to utilize such a presumption. The Benefits Review Board would then determine whether or not to affirm the ALJ’s decision. Certainly as with other such decisions, this decision would be appealable to this court, which would then review under the appropriate standards to. determine whether to approve or create such a presumption. On appeal to this court, I see no reason why despite such findings, the Act itself would stand as an obstacle to our judicially creating such a presumption. While uniformity may indeed have been one goal of the Act, I agree with Judge Boggs that reading Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), as mandating a prohibition of all non-statutory presumptions is overly broad and unwarranted. As explained in 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 163-64 . (7th ed.1998), “[cjourts can and have created and applied presumptions as a matter of federal common law when necessary to further congressional policy (i.e., when Congress would have wanted a presumption created).” A Doris Coai-like presumption would be wholly consistent with the remedial" }, { "docid": "5231791", "title": "", "text": "petitioners were liable for the hospital bills. The DOL thus directed Old Republic to provide payment. Gulf & Western and Old Republic contested their liability and requested a hearing; they submitted reports from three experts in support of their position. Dr. Kirk E. Hippensteel examined Mr. Ling and concluded that his poor pulmonary condition was the result of an “obstructive” impairment, ie., COPD, indicating causation by cigarette smoking, rather than clinical pneumoconiosis, which, Hip-pensteel asserted, produces a “restrictive” impairment. Dr. Gregory J. Fino and Dr. Benjamin V. Branscomb reviewed Mr. Ling’s records, and they concurred with Hippensteel. Each stated his belief that Mr. Ling’s condition would have been the same had he never worked in the mines. Dr. White disagreed. In a letter to the ALJ, he expressed his opinion that the documented level of Mr. Ling’s obstructive impairment could not solely account for the severity of his shortness of breath. A hearing was conducted before an ALJ, who issued a Decision and Order on January 11, 1995, directing Gulf & Western and Old Republic to pay the outstanding hospital bills and provide future payment for “any and all medical treatment related to [Mr. Ling’s] breathing difficulties.” In so ruling, the ALJ concluded that the regulations were broad enough to encompass COPD as an “ancillary” condition to pneu-moconiosis. The ALJ found the opinions submitted by the petitioners’ experts to be unpersuasive to the extent that they failed to acknowledge that pneumoconiosis and COPD manifest themselves in the same outward symptoms. Gulf & Western and Old Republic filed an administrative appeal of the Decision and Order. On February 21, 1997, the BRB affirmed the ALJ’s ruling on the strength of our opinion in Doris Coal Co. v. Director, OWCP, 938 F.2d 492 (4th Cir.1991). A subsequent motion for reconsideration was denied by the BRB on June 25, 1997. Gulf & Western and Old Republic now petition us for review of the BRB’s dispositive orders. II. In accordance with the established principles governing judicial oversight of actions undertaken by federal administrative agencies, our review of this matter is confined to the grounds" }, { "docid": "5231788", "title": "", "text": "Petition for review granted and claim remanded by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Senior Judge MICHAEL joined. OPINION KING, Circuit Judge: Gulf & Western Industries and its workers’ compensation liability insurer, Old Republic Insurance Co., petition for review of the final Decision and Order of the Benefits Review Board (BRB) directing the payment of medical benefits to the respondent, George Ling, Jr., a former coal miner, for the treatment of certain -maladies said to be related to his coal workers’ pneumoconiosis. The BRB subsequently issued an order denying the petitioners’ motion for reconsideration, from which review is also sought. We conclude that the BRB applied our precedent in a manner inconsistent with prevailing Supreme Court authority. We therefore grant the petition for review and remand the claim for further consideration. I. A. On September 25, 1973, Mr. Ling, then 46, filed a claim with the Department of Labor (DOL) for federal black lung disability benefits. Inasmuch as Mr. Ling had last been employed by a subsidiary of Gulf & Western, the latter was determined to be the operator responsible for any benefit award. The claim was heard before an Administrative Law Judge, who, on April 19, 1983, issued a Decision and Order awarding Mr. Ling disability benefits. In accordance with the eligibility requirements of the Black Lung Benefits Act (BLBA or “Act”), 30 U.S.C. §§ 901 to 945, and the applicable regulations, the ALJ found that: (1) Mr. Ling suffered from pneumoconiosis; (2) the affliction arose from his coal mine employment; (3) he was no longer able to perform his previous work; and (4) his disability was due, at least in part, to the pneumoconiosis. Gulf & Western and Old Republic filed an appeal of the ALJ’s decision with the BRB, but they ultimately opted to forgo administrative review. On December 5, 1983, the BRB granted the petitioners’ motion to dismiss their appeal with prejudice. Old Republic began disbursing disability benefits to Mr. Ling, who continues to receive them today. B. In July 1989, Mr. Ling was admitted to the hospital for three" }, { "docid": "21615122", "title": "", "text": "is the cause of Scott’s disability; therefore, we reverse the Board’s decision affirming the ALJ’s opinion on causation as not supported by substantial evidence. Scott has requested this court to remand with orders to award benefits. Upon our review of the record, no substantial evidence can support a finding that Scott is not totally disabled. Additionally, there is no substantial evidence to dispute any causative contribution of pneumoconio-sis to Scott’s disability. Under these circumstances, an ALJ must find that Scott is totally disabled due to pneumoconiosis. Thus, we reverse the Board’s order denying benefits and remand with an order to award benefits without further administrative proceedings because on this record, only one factual conclusion is possible establishing Scott’s entitlement to benefits. See Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 524 (4th Cir.1995); Barber v. Director, OWCP, 43 F.3d 899, 901 (4th Cir.1995); Adkins v. Director, OWCP, 958 F.2d 49, 52-53 (4th Cir.1992) (awarding benefits after resolving conflicts in medical evidence); see also Manda v. Director, OWCP, 130 F.3d 579, 593-94 (3d Cir.1997). REVERSED AND REMANDED WITH INSTRUCTIONS. . The ALJ determined that Scott had pneumo-coniosis from contradictory X-ray evidence. The ALJ justified the determination after using the true doubt rule to resolve all doubt concerning the X-ray evidence in the claimant's favor and after finding support in Dr. Taylor's and Dr. Joseph P. Smiddy’s opinions. The Supreme Court later rejected the true doubt rule in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). The Board, however, affirmed the pneumoconiosis finding despite the ALJ’s use of the true doubt rule because Mason Coal did not challenge the ALJ's alternative basis for his decision based on the doctor's opinions. The Board decided in the decision at issue here that Dr. Smiddy's opinion was weakened because of his reliance on an invalidated pulmonary function study. However, Mason Coal has not raised this issue here, and we consider it finally determined that Scott’s has pneumoco-niosis as a direct result of his coal mine employment. . Scott has not appealed with respect either the ALJ's" }, { "docid": "5231802", "title": "", "text": "validity of the claim remains at all times with the miner. With regard to this last proposition, at least, we find ourselves in agreement with the Sixth Circuit, the only other court of appeals that has considered the issue. See Glen Coal Co. v. Seals, 147 F.3d 502, 512 (6th Cir.1998): We hold that the Doris Coal presumption merely reallocates the burden of production, and does not affect the burden of proof. The effect of the Doris Coal presumption is to find that where there is a stage one determination that the claimant is totally disabled due to pneumoconiosis, then in stage two the claimant does not have to come forward with any additional evidence to prove that his medical bills are related to his pneumoconiosis[.] The Seals court explained further that the only thing that changes is that the claimant’s initial burden of coming forward with evidence supporting his stage two claim is eased by virtue of the determination in the first stage that he has pneumoconiosis.... The presumption does not change the fact that the claimant still bears the burden of proof to show by a preponderance of the evidence that his bills are related to his pneumoconiosis ... [,] but the claimant is relieved of the requirement of producing additional evidence of this relationship. He may rely on the first stage determination to show the relatedness of the condition and the medical treatment at issue. Id. We believe that the above passages accurately state the scope and effect of the Doris Coal presumption. In as much as the presumption does not shift the burden of proof in medical benefit cases from the claimant to the party opposing the claim, it is not contrary to the Supreme Court’s decision in Greenwich Collieries. 2. Mr. Ling, like Stiltner before him, submitted medical bills evidencing treatment for respiratory ailments; he had arrived at the hospital complaining of coughing, wheezing, and shortness of breath. Mr. Ling’s breathing difficulties were attributed by his physician to specific pulmonary disorders, i.e., COPD and clinical pneumoconiosis. This diagnosis, as the BRB correctly recognized, was sufficient" }, { "docid": "23248311", "title": "", "text": "was subsequently taken to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit transferred the matter to this Court pursuant to 28 U.S.C. § 1631 upon discovery that Seals’ coal mine work occurred in the Sixth Circuit, in Kentucky. Before this Court is therefore an issue of first impression of whether the Fourth Circuit Doris Coal presumption is consistent with the law of the Sixth Circuit, as governed by § 7(c) of the APA. PROPRIETY OF APPLICATION OF THE DORIS COAL PRESUMPTION IN THE SIXTH CIRCUIT Petitioners argue that this Court should vacate the order of the ALJ in this case and remand for proceedings under Sixth Circuit law, as governed by § 7(c) of the APA. Petitioners argue that the Fourth Circuit presumption relied upon by the ALJ is improper as a matter of law because it shifts the burden of proof to Petitioners, in conflict with § 7(c) of the APA, which states that the burden of proof is on the proponent of a rule or order (i.e. Seals in this case) unless statutorily changed. Petitioners rely on the Supreme Court decision of Director, OWCP, Department of Labor v. Greenwich Collieries [Ondecko], 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), which struck down a judicially created presumption in conflict with § 7(c) of the APA because it attempted to place the burden .of proof on other than the claimant. Respondents, on the other hand, argue that the Doris Coal presumption does not violate the rule of Greenwich Collieries and is therefore consistent with § 7(c) of the APA and the law of the Sixth Circuit. Respondents argue that the Doris Coal presumption merely reallocates the burden of production, and Greenwich Collieries only prohibits a reallocation of the burden of proof. 1.Standard of Review The court of appeals has a very narrow scope of review over decisions of the Benefits Review Board. Cah-Glo Coal Company v. Yeager, 104 F.3d 827, 830 (6th Cir.1997). The AL J hears the evidence and makes findings of fact. Director, OWCP, United States Department of Labor v. Quarto" }, { "docid": "23533418", "title": "", "text": "that “the presence of disabling pneumoconiosis has not been established by the information available.” In addition to Drs. Morgan (Swar-row’s treating physician), Garson and Silver-man, two other examining physicians, Drs. Cho and Levine, concluded that Swarrow suffered from disabling pneumoconiosis. Finding that Swarrow had not proven “a material change in conditions,” the District Director denied Swarrow’s duplicate claim in an order dated February 27, 1990. On March 6, 1990, Swarrow appealed the denial to the BRB. On December 5,1990, the BRB remanded Swarrow’s claim to the Office of Administrative Law Judges, based upon the Tenth Circuit’s ruling in Lukman v. Director, OWCP, 896 F.2d 1248 (1990), for a hearing before an ALJ. After a hearing, held on April 9, 1992, the ALJ, finding that Swarrow had established “a material change in conditions,” issued its decision and order on March 31, 1993. This order awarded benefits to Swarrow. Labelle appealed the award to the BRB. The BRB, on September 15, 1994, affirmed the award and denied Labelle’s motion for reconsideration on January 4, 1995. This appeal by Labelle followed. II. The BLBA provides for the payment of benefits to coal miners “who are totally disabled due to pneumoconiosis [also known as black lung disease].” Id. at § 901(a); 20 C.F.R. § 725.1(a). Pneumoconiosis is defined under the BLBA as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b); 20 C.F.R. § 725.101(a)(20). The “legal” definition of pneumoconiosis (i.e. any lung disease that is significantly related to, or substantially aggravated by, dust exposure in coal mine employment) is much broader than the medical definition, which only encompasses lung diseases caused by fibrotic reaction of lung tissue to inhaled dust. See Doris Coal Co. v. Director, OWCP, 938 F.2d 492, 496 (4th Cir.1991). Congress granted the Secretary of Labor broad authority to promulgate regulations under the BLBA. 30 U.S.C. §§ 932(a), 936(a); 20 C.F.R. § 725.301-.422; see also Director, OWCP v. National Mines Corp., 554 F.2d 1267, 1275 (4th Cir.1977) (holding that validity of regulations will be" }, { "docid": "23248360", "title": "", "text": "then determine whether or not to affirm the ALJ’s decision. Certainly as with other such decisions, this decision would be appealable to this court, which would then review under the appropriate standards to. determine whether to approve or create such a presumption. On appeal to this court, I see no reason why despite such findings, the Act itself would stand as an obstacle to our judicially creating such a presumption. While uniformity may indeed have been one goal of the Act, I agree with Judge Boggs that reading Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), as mandating a prohibition of all non-statutory presumptions is overly broad and unwarranted. As explained in 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 163-64 . (7th ed.1998), “[cjourts can and have created and applied presumptions as a matter of federal common law when necessary to further congressional policy (i.e., when Congress would have wanted a presumption created).” A Doris Coai-like presumption would be wholly consistent with the remedial purposes of the Act and the principles on which it was enacted and amended. The Senate Report that accompanied the passage of the Act in 1972, which broadened the definition of “pneumoconiosis,” recognized the uncertain state of medical knowledge and the need to compensate for this uncertainty. See S.Rep. No. 92-743, at 9-11 (1972), reprinted in 1972 U.S.C.C.A.N. 2305, 2313-15; see also Adams v. Director, OWCP, 886 F.2d 818, 825 (6th Cir.1989) (noting the Act’s concern with inflexible proof of causation requirements, as illustrated by the Act’s reliance on rebuttable presumptions, as support for requiring only that a miner’s pneumoconiosis be a partial cause of his total respiratory disability) (citing Southard v. Director, OWCP, 732 F.2d 66, 70-71 (6th Cir.1984)). In particular, the report noted the testimony of an acknowledged expert in the field of pulmonary impairments of coal workers: Other conditions of the lung, in addition to [clinical] pneumoconiosis, are commonly encountered among coal miners. While the exact causes of these conditions are not completely understood and while other nonoecupational factors may be in" } ]

[ { "docid": "12166232", "title": "", "text": "their tes timony, and that she was willing to forego any reliance on the deceased witnesses. Serdarevic’s claim that the witnesses are unimportant is belied by her discussion of interactions with each of the witnesses in the portion of her declaration describing the conception of her invention. As the district court concluded, the witnesses “were each important enough to the historical record for Serdarevic to describe her work with them in the declaration she submitted in opposition” to defendants’ motion for summary judgment. Id. Moreover, Serdarevic’s willingness to forego reliance on the witnesses does not undo the prejudice to the defendants. There are no declarations by the witnesses in the record, and the defendants have had no opportunity to question them. Thus, as the district court concluded, “their deaths prevent the defendants from fully investigating Serdarevic’s claims.” Id. We therefore conclude that the district court did not abuse its discretion by finding that Serda-revic had failed to rebut the presumption of evidentiary prejudice. 3. Unclean Hands Under the unclean hands doctrine, “[e]ven if unable to overcome the presumption, a [plaintiff] may be able to preclude application of the laches defense with proof that the [defendant] was itself guilty of misdeeds towards the [plaintiff].” Aukerman, 960 F.2d at 1038. To succeed in an unclean hands claim, a plaintiff is required to show that the defendant has “engaged in particularly egregious conduct which would change the equities significantly in plaintiffs favor.” See id. at 1033 (citing Bott v. Four Star Corp., 807 F.2d 1567, 1576 (Fed.Cir.1986)). But it is not enough merely to show misconduct. See Yeda Research & Dev. Co. v. Imclone Sys. Inc., 443 F.Supp.2d 570, 629-30 (S.D.N.Y. 2006) (“Because we find that defendants’ hands are unclean, ie., they are responsible for plaintiff not finding out about their patent applications, the laches defense is unavailable to defendants.”); see also Potash Co. of Am. v. Int’l Minerals & Chem. Corp., 213 F.2d 153, 155 (10th Cir.1954) (“If the party which advances the defense of laches is responsible for the delay or contributes substantially to it he cannot take advantage of it.”);" } ]

[ { "docid": "2550291", "title": "", "text": "to close their doors to those tainted with inequity. Precision Instrument Mfg. Co., 324 U.S. at 814, 65 S.Ct. at 997. It is applied regardless of the behavior of the defendant, because courts will simply not be “the abettor[s] of iniquity.” Id. Thus, if the hands of a plaintiff are found to be unclean, “he must be denied all relief whatever may have been the merits of his claim.” Gaudiosi 269 F.2d at 882 (citation omitted). Courts have emphasized that the “unclean hands” defense is a narrow one. See General Dev. Corp. v. Binstein, 743 F.Supp. 1115, 1134 (D.N.J.1990). That is, because the maxim is equitable, it applies to bar only equitable relief. Id. But see Tarasi v. Pittsburgh Nat’l Bank, 555 F.2d 1152 (3d Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 451 (1977) (discussing legal defense of “in pari delicto”). Further, the defense applies only to conduct which is immediately related to the present dispute. Unrelated conduct will not establish “unclean hands.” DeLong Corp. v. Raymond Int’l, Inc., 622 F.2d 1135, 1146 n. 10 (3d Cir.1980). Thus, while ‘“equity does not demand that its suitors shall have led blameless fives’ as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue.” Precision Co., 324 U.S. at 814-15, 65 S.Ct. at 997 (quoting Loughran v. Loughran, 292 U.S. 216, 229, 54 S.Ct. 684, 689, 78 L.Ed. 1219 (1934)). Courts have wide discretion in refusing to aid unclean parties, and are not bound by any formula which would limit that discretion. Precision Co., 324 U.S. at 815, 65 S.Ct. at 997-98. The United States Supreme Court, however, has provided a guiding principle: that “[a]ny willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for the invocation of the maxim.” Id. In other words, relief will be denied a party “who in the very controversy has so conducted himself as to shock the moral sensibilities of the judge.” Gaudiosi, 269 F.2d at 882." }, { "docid": "22188993", "title": "", "text": "so because it would not be equitable to excuse a defendant who has been committing conscious fraud. See DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499, 514 (1st Cir. 1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976); Holiday Inns, Inc. v. Holiday Inn, supra; Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332 (Sup.Ct.1959). In this case, however, there is nothing remotely resembling conscious fraud. There is substantial evidence that the defendants, particularly Waters of Saratoga, relied upon plaintiff’s conduct. Waters of Saratoga’s decision to buy the license from the State was based on the availability of the trademark, as well as the availability of the facilities and the wells. It is sometimes said that the continued production and sale of an infringing product does not constitute reliance, see Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir. 1965); Alfred Dunhill of London, Inc. v. Kasser Distillers Products Corp., 350 F.Supp. 1341, 1368 (E.D.Pa.1972), aff’d mem., 480 F.2d 917 (3d Cir. 1973). But the defendant’s entry into a new business in reliance on plaintiff’s acquiescence in the validity of the trademark about to be licensed is a different matter. In this case, Waters of Saratoga’s reliance is sufficient to support its equitable defense against Sar-atoga Vichy’s claims even if the “Saratoga Geyser” mark was not used for a period of time. This conclusion offers no general defense to infringers scavenging in the graveyard of abandoned trademarks. Only special circumstances will support an estoppel in the face of a claim of non-use. The trademark owner must have acquiesced in the previous use of the mark, and must have actual notice that an effort is being made to resume its use through its sale to an innocent purchaser relying upon its continued validity. In the present case, all these circumstances were present; in addition, Saratoga Vichy wrote two letters indicating that it regarded the “Saratoga Geyser” mark to have continuing validity. The Trademark Defense Even if Saratoga Vichy’s action were not barred by laches, the defendants in this suit would be" }, { "docid": "10792245", "title": "", "text": "defendant SFJCC’s affiliation with National in which SFJCC disaffiliated from National and continued to use the name San Francisco Junior Chamber of Commerce, these periods of disaffiliation were typically short-lived. Furthermore, plaintiffs commenced this action within only a few months of defendant SFJCC’s most recent disaffiliation. It is arguable whether such action by plaintiffs could even be construed as “delay.” Cf. G. D. Searle & Company v. MDX Purity Pharmacies, Inc., 275 F.Supp. 524, 532-533 (C.D.Cal.1967). However, whatever term is used to describe plaintiffs’ actions, plaintiffs’ failure to object to defendant SFJCC’s continued use of its name following its disaffiliation was not for “such an unreasonable time that equity will no longer give heed to its request for action.” (California Packing Corporation v. Sun-Maid Raisin Growers, 81 F.2d at 679.) The Existence of Other Infringers Related to defendant SFJCC’s claim of laches and acquiescence is its contention that because plaintiffs failed to initiate legal action against other local chapters who upon disaffiliation continued in the use of their name, plaintiffs are estopped from obtaining injunctive relief in this action. Callman suggests that this is no defense where the defendant has engaged in unfair competition: “In principle, the defendant cannot avail himself of the defense that other competitors are engaging in the very same acts of unfair competition of which he has been accused, and he cannot invoke the doctrine of estoppel on the ground that the plaintiff has' knowingly permitted the use and registration of the disputed mark by third parties not in privity with defendant.” (4 Callman, The Law of Unfair Competition, .Trademarks and Monopolies, § 87.3(e) at 152 (3d Ed. 1970).) Numerous cases have rejected this defense, holding that the existence of infringers other than the defendant was irrelevant to a determination of whether the defendant should be enjoined from continuing in its infringement of plaintiffs’ trademarks and in its unfair competition. See, e.g., Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 614 (7 Cir. 1965); National Lead Company v. Wolfe, 223 F.2d 195, 204 (9 Cir. 1955); Del Monte Special Food Co. v. California Packing" }, { "docid": "756637", "title": "", "text": "to Griswold (P. Ex. 5; see Finding 24) clearly enunciated American’s concerns. That letter was followed by other contacts (including Schwarte’s April 8 letter, P. Ex. 6) seeking to have 1-800 cease its misconduct. None of this reflects any undue delay on the part of American, nor does it reflect any acquiescence by American in 1-800’s infringement of American’s marks. There is no reasonable doubt that, had American possessed full information sooner, it would have acted sooner in precisely the same way in which it did act. No credence is to be given to any suggestion that American somehow misled 1-800 into acting to its own detriment before American instituted this action to vindicate its lawful rights. 15. Nor is there any predicate for a laches defense here. Even had American delayed in pursuing its rights (as it did not), mere delay is not sufficient to bar a lawsuit such as this one (Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir.1965)), especially where (as here) the infringer has had knowledge of its own infringement and has deliberately set out to capitalize on the goodwill of the owner of the marks. Holiday Inns, Inc. v. Holiday Inn, 364 F.Supp. 775, 783-84 (D.S.C.1973), aff'd mem., 498 F.2d 1397 (4th Cir.1974) . To invoke the laches doctrine, a defendant must prove both inexcusable delay and resulting prejudice. Advanced Hydraulics, Inc. v. Otis Elevator Co., 525 F.2d 477, 479 (7th Cir.), cert. denied, 423 U.S. 869, 96 S.Ct. 132, 46 L.Ed.2d 99 (1975). In the trademark context, our Court of Appeals has said (Tisch, 350 F.2d at 615) plaintiff’s delay must be “so prolonged and inexcusable that it amounts to a virtual abandonment of the right by the plaintiff for a long period of time____” 1-800 fails utterly on both branches of the laches test. There was no “delay” by American in filing this action, much less any “inexcusable delay.” As soon as American’s corporate headquarters obtained an address to which an objection could be sent, one was dispatched. Another follow-up letter was sent promptly thereafter, demanding a cessation" }, { "docid": "264900", "title": "", "text": "of each party’s wrong upon the other and upon the public should be taken into account, and an equitable balance struck. Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 350 (9th Cir.1963). Evidence of some misconduct by the plaintiff, therefore, is not an automatic bar to recovery; rather, a district court has “wide latitude to compare the cleanliness of the parties ‘hands’.” United States v. Zenon, 711 F.2d 476, 478 (1st Cir.1983) see also Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 815, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1945) (the unclean hands doctrine “necessarily gives wide range to the equity courts use of discretion in refusing to aid the unclean litigant. It is not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion.”). After carefully considering the state’s conduct during the early stages of the cleanup, I conclude that it does not so soil the state’s hands that recovery is barred in this action. My conclusion is informed not only by a balancing of the equities in this case, but also by the simple fact that courts have uniformly held that mere negligence on the part of the plaintiff is insufficient to bar relief under the unclean hands doctrine. See Shearson/American Express, Inc. v. Mann, 814 F.2d 301, 307 (6th Cir.1987); Pfizer, Inc. v. Int’l Rectifier Corp., 685 F.2d 357, 359 (9th Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 818, 74 L.Ed. 2d 1016 (1983); International Union, Etc. v. Local Union No. 589, 693 F.2d 666, 672 (7th Cir.1982); Bresh v. Braecklein, 133 F.2d 12, 14 (10th Cir.1943). Therefore, even if I were to conclude that the state was negligent during the initial stage of the cleanup, that conclusion would be insufficient to trigger application of the doctrine of unclean hands. Third-Party Defense CERCLA section 107(b), in relevant part, provides: There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish that the release or threat of release of a hazardous substance and" }, { "docid": "14241740", "title": "", "text": "promoting the infringed name, then relief would have to be denied in practically every case of delay.” Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir.1965). Yet, cases hold that “[t]o deny injunctive relief in trademark litigation ... some affirmative conduct in the nature of an estoppel, or conduct amounting to ‘virtual abandonment,’ is necessary.” Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 366 n. 2 (6th Cir.1985) (citations omitted), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986). There is no allegation that Copy Cop abandoned its marks, or that it ever communicated to Sampa its acquiescence in Sampa’s use of a similar mark. Without these allegations, Sampa cannot establish a genuine issue of material fact sufficient to preclude summary judgment on its defense of laches. 5. Relief a. Injunctive relief A district court has broad discretion to fashion an injunction to suit the circumstances in the particular case. See, e.g., Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944) (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.”). The Supreme Court has repeatedly made clear that this is generally true even when the injunctive remedy is congressional in origin. See Williams v. Jones, 11 F.3d 247, 256 (1st Cir.1993) (citing cases). b. Declaratory relief Because the Court’s holding that there is a likelihood of confusion is dependent upon the strength of Copy Cop’s mark in the Boston area, the declaratory judgment is limited to the Boston area as well. Also, there is a genuine issue of material fact concerning the laches defense in geographic areas outside Massachusetts. To the extent Copy Cop seeks in its motion for summary judgment a declaration of trademark infringement outside the Boston area, the motion is denied. ORDER The Court ALLOWS Copy Cop’s motion for partial summary judgment. For the foregoing reasons, this Court ALLOWS plaintiffs motion for a permanent injunction, and" }, { "docid": "22188992", "title": "", "text": "balance of equities. The State’s original inclusion of the term “Saratoga” in its mark was natural, given the fame of that area for mineral waters; there were apparently many products using that name at the time, and the State’s decision cannot be regarded as an effort to copy or benefit from “Saratoga Vichy.” When the State offered to sell its bottling operation, it naturally included the established trademark “Saratoga Geyser” in the sale, since the good will associated with this mark was a large part of the license’s value. In this context, the registration of the trademark shortly after the State stopped operating its bottling plant was clearly designed to clarify its rights, in order to make the license it was offering more valuable. Waters of Saratoga understandably decided to retain this trademark when it bought the license; it can hardly be regarded as acting in bad faith for continuing to use the name it had acquired. When courts refuse to bar a suit on the basis of the plaintiff’s “mere delay,” they often do so because it would not be equitable to excuse a defendant who has been committing conscious fraud. See DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499, 514 (1st Cir. 1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976); Holiday Inns, Inc. v. Holiday Inn, supra; Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332 (Sup.Ct.1959). In this case, however, there is nothing remotely resembling conscious fraud. There is substantial evidence that the defendants, particularly Waters of Saratoga, relied upon plaintiff’s conduct. Waters of Saratoga’s decision to buy the license from the State was based on the availability of the trademark, as well as the availability of the facilities and the wells. It is sometimes said that the continued production and sale of an infringing product does not constitute reliance, see Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir. 1965); Alfred Dunhill of London, Inc. v. Kasser Distillers Products Corp., 350 F.Supp. 1341, 1368 (E.D.Pa.1972), aff’d mem., 480 F.2d 917 (3d Cir. 1973). But the" }, { "docid": "1434908", "title": "", "text": "contention in support of its equitable defenses is that after five years of use without protest from the plaintiff, it would be severely prejudiced if it had to discontinue use of the Dunhill mark. Defendant contends that it acted in good faith in adopting the mark and that since it has innocently cultivated the sales and goodwill of its scotch to the point where it is the fourth best selling scotch in Pennsylvania, as a matter of equity it would be unjust to enjoin its use. At the outset, we note that the plaintiff did not affirmatively mislead defendant, or even impliedly acquiesce, in its use of the mark. Cf. Alfred Dunhill of London, Inc. v. Dunhill Tailored Clothes, Inc., 119 U.S.P.Q. 325 (S.D.N.Y. 1958). Indeed, plaintiff (on advice of counsel) did not notify defendant of its objection to its use of “Dunhill” until filing of the opposition proceedings. The defendant’s sole reliance, if any, emanated then from the plaintiff’s silence for three years as we see it and for five years at most. Defendant’s operations would undoubtedly be disrupted, at least for a time by the discontinuance of the use of the Dunhill mark and it might indeed not be able to replace it with as good a seller. However, in light of our finding that there is likelihood of confusion, the success of the defendant’s product at least in part may be attributable to the confusion of source. In any event, the holding in Jenn-Air (see discussion supra) ineluctably requires the conclusion that the defendant has suffered no prejudice where nothing (.more is shown than that it has continued to sell the infringing product for the period in question. In any event, we agree with the' court in' Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir. 1965), which observed: “If this prejudice could consist merely of expenditures in promoting the infringed name, then relief would have to be denied in practically every case of delay.” Moreover, at least part of defendant’s success with the infringing mark, the loss of which would, it is" }, { "docid": "4467669", "title": "", "text": "filed on December 22, 1981, only three months after plaintiff became aware of defendant’s act. That is not an unreasonable delay. Moreover, the mere lapse of time does not constitute laches barring injunctive relief. See, e.g., Carl Zeiss Stiftung v. VEB Carl Zeiss, Jena, 433 F.2d 686, 704 (2 Cir., 1970), cert. denied 403 U.S. 905 (1971); Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 614 (7 Cir., 1965). Furthermore, estoppel by laches is not available as a defense to a defendant in a trademark infringement or unfair competition case where its own actions had been calculated to trade upon plaintiff’s reputation. Baker v. Simmons Co., 307 F.2d 458 (1 Cir., 1962); National Lead Co. v. Wolfe, 223 F.2d 195 (9 Cir., 1955), cert. denied 350 U.S. 883 (1955); Cuban Cigar Brands N. V. v. Upmann International, Inc., 457 F.Supp. 1090 (S.D.N.Y., 1978). Since we have concluded that Lazoff is not entitled to the defense of laches, estoppel or acquiescence to bar this preliminary injunction, we must decide if a preliminary injunction should issue. Preliminary Injunction Standards To obtain preliminary relief, the moving party must show that it has reasonable likelihood of eventual success on the merits; that it will be irreparably injured if relief is not granted; that a balance of equities favor the plaintiff; and that the public interest would be served by issuing the injunction. Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d 273 (1 Cir., 1981); Grimard v. Carlston, 567 F.2d 1171 (1 Cir., 1978). The Court shall consider plaintiff’s motion in light of these considérations. Plaintiff’s Claim of Statutory Trademark Infringement It is well settled that likelihood of confusion is an essential element of both the claim for trademark infringement and unfair competition. See Pignons S. A. de Mecanique v. Polaroid Corp., 657 F.2d 482 (1 Cir., 1981); Coca-Cola Co. v. Snow Crest Beverages, Inc., 162 F.2d 280, 283 (1 Cir.), cert. denied 332 U.S. 809 (1947); De Costa v. Columbia Broadcasting System, Inc., 520 F.2d 499 (1 Cir., 1975), cert. denied 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83" }, { "docid": "4033300", "title": "", "text": "Clipper, Inc., 441 F.2d 946, 949 (3d Cir. 1971). In recognition of the equitable nature of the defense of laches, courts have also considered whether the party asserting the defense is a conscious wrongdoer. E. g., TWM Manufacturing Co. v. Dura Corp., 592 F.2d 346 (6th Cir. 1979); Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir. 1965); John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 323 (E.D.Pa.1976) (Fullam, J.), aff’d in part and rev’d in part on other grounds, 587 F.2d 602 (3d Cir. 1978); Alfred Dunhill of London, Inc. v. Kasser Distillers Products Corp., 350 F.Supp. 1341, 1368 (E.D. Pa.1972) (Becker, J.), aff’d mem., 480 F.2d 917 (3d Cir. 1973). If laches is invoked by a defendant who is a conscious wrongdoer, he can prevail only if the plaintiff’s delay “is so prolonged and inexcusable that it amounts to a virtual abandonment of the right by the plaintiff for a long period of time.” John Wright, supra, quoting Tisch Hotels, supra. 1. Burden of Proof of Laches The allocation of the burden of proof of laches depends on the length of the plaintiff’s delay. If the delay is shorter than the applicable statute of limitations, then the defendant has the burden of proving laches. If, on the other hand, the delay is longer than the applicable statute of limitations, then the defendant is entitled to a rebuttable presumption of both elements of laches. In that case, the plaintiff has the burden of disproving laches. Gruca, supra; Miller v. United States, 438 F.Supp. 514, 524 (E.D.Pa.1977) (Luongo, J.). The relevant statute of limitations here is six years, as we have previously noted. In order to allocate the burden of proof of laches, we must determine whether the plaintiff has slept on its rights for more than six years. See n. 13, supra. We note that a plaintiff against whom laches is invoked is chargeable with knowledge not only of facts which were actually known to him at the time, but also of facts which he could have learned by means of an inquiry pursued with" }, { "docid": "14241739", "title": "", "text": "testimony of Copy Cop president Michael Gerstein that his knowledge of Sampa’s national franchise program necessarily translated into an understanding that Sampa might sell a franchise in Boston. However, there is no allegation that Copy Cop was aware of the franchise negotiations or the franchise agreement until Ger-stein noticed the franchise in operation in Newton in the summer, 1993. Waiting until a franchise actually appears makes good business sense, and is not inexcusable delay. “A reasonable businessman should be afforded some latitude to assess both the impact of another’s use of an allegedly infringing trademark as well as the wisdom of pursuing litigation on the issue.” Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 366 (6th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986). Even if this delay were inexcusable, Sampa has failed to allege undue prejudice from the delay. Task was aware of Copy Cop’s objection in December 1993, when the cease and desist letter was sent. In addition, “[i]f prejudice could consist merely of expenditures in promoting the infringed name, then relief would have to be denied in practically every case of delay.” Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir.1965). Yet, cases hold that “[t]o deny injunctive relief in trademark litigation ... some affirmative conduct in the nature of an estoppel, or conduct amounting to ‘virtual abandonment,’ is necessary.” Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 366 n. 2 (6th Cir.1985) (citations omitted), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986). There is no allegation that Copy Cop abandoned its marks, or that it ever communicated to Sampa its acquiescence in Sampa’s use of a similar mark. Without these allegations, Sampa cannot establish a genuine issue of material fact sufficient to preclude summary judgment on its defense of laches. 5. Relief a. Injunctive relief A district court has broad discretion to fashion an injunction to suit the circumstances in the particular case. See, e.g., Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed." }, { "docid": "4954053", "title": "", "text": "fact that it chose to wait until the conflict was actual, versus potential, was not an excuse and did not constitute progressive encroachment. 391 F.3d at 1103. The same reasoning applies here. Internet Specialties was not entitled to wait until MDE’s business grew large enough to constitute a real threat, and then sue for trademark infringement. Therefore, we find that the district court erred in its conclusion that Internet Specialties was diligent, the second E-Systems factor. However, MDE must still satisfy the second prong of the laches test: prejudice resulting from Internet Specialties’ unreasonable delay in bringing suit. See Jarrow, 304 F.3d at 839 (holding that after a finding of unreasonable delay, laches would not apply unless defendant also demonstrated prejudice). The dissent views this as an open-and-shut case of prejudice, because MDE “continued to build a valuable business around its trademark during the time that the plaintiff delayed the exercise of its legal rights.” Dissent p. 3420, quoting Grupo Gigante, 391 F.3d at 1105. The dissent would hold that the expansion from 2,000 customers to 13,000 customers, along with the accompanying sales and expenses, constitutes prejudice. Dissent p. 3421. While we are sympathetic to MDE’s position, the meaning of prejudice in this context is not so simple. “If this prejudice could consist merely of expenditures in promoting the infringed name, then relief would have to be denied in practically every case of delay.” Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir.1965). Laches is meant to protect an infringer whose efforts have been aimed at “buildfing] a valuable business around its trademark ” and “an important reliance on the publicity of [its] mark.” 6 McCarthy on Trademarks and Unfair Competition § 31:12 (citations omitted) (emphases added). Therefore, we feel compelled to analyze whether MDE’s claim of prejudice is based on “mere[] expenditures in promoting the infringed name,” Tisch Hotels, 350 F.2d at 615, or whether it is based on an investment in the mark ISPWest as the identity of the business in the minds of the public. See Jarrow, 304 F.3d at 835-36 (finding prejudice" }, { "docid": "4677098", "title": "", "text": "89 L.Ed. 1381 (1945) (clean hands doctrine requires that suitors “shall have acted fairly and without fraud or deceit as to the controversy in issue”); Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., 747 F.2d 844, 855 (3d Cir.1984), (unclean hands defense applies when plaintiff’s conduct is “inequitable,” “egregious,” and “involves the subject matter of the plaintiff’s claim”), cert. denied, 471 U.S. 1137, 105 S.Ct. 2678, 86 L.Ed.2d 696 (1985); International Union, Allied Industrial Workers v. Local 589, 693 F.2d 666, 672 (7th Cir.1982) (“bad conduct constituting unclean hands must involve fraud, unconscionability or bad faith toward the party proceeded against” which “ ‘affect[s] the equitable relations between the litigants’ ” and doctrine “only applies when there is a direct nexus between the bad conduct and the activities sought to be enjoined”) (quoting Washington Capitols Basketball Club v. Barry, 419 F.2d 472, 478 (9th Cir.1969)); Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir.1979) (“alleged wrongdoing of the plaintiff does not bar relief unless the defendant can show that he has personally been injured by the plaintiff’s conduct”), cert. denied, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980); Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir.1976) (application of unclean hands doctrine is an “extreme sanction ... [which] requires a [substantial] showing of fault, willfullness or bad faith”), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977); John Wright, Inc. v. Caspar Corp., 419 F.Supp. 292, 324 (E.D.Pa.1976) (“The courts of Pennsylvania interpret [the defense of unclean hands] narrowly and are loathe to bar relief except where the plaintiff’s conduct is clearly on point and ‘change[s] the equitable relationship of the parties.’ ”) (quoting Goebel Brewing Co. v. Esslingers, Inc., 373 Pa. 334, 349, 95 A.2d 523 (1953)), aff'd in part and rev’d in part sub nom., Donsco, Inc. v. Caspar Corp., 587 F.2d 602 (3d Cir.1978). Although the first and third elements have been satisfied in this case, defendants have failed to establish the second, fourth and fifth elements. The defendants are precluded, therefore, from raising the doctrine" }, { "docid": "14285139", "title": "", "text": "has been diligent in its attempts to stop Riceland’s use of its infringing marks. ARI has opposed Rice-land’s attempts to register its trademark in this country. In addition, ARI quickly sought a preliminary injunction when the red-yellow trade dress was combined with the Riceland girl design. Second, as a general rule, the defense of laches does not bar injunctive relief, although other relief, such as an accounting may be barred. Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 614-15 (7th Cir. 1965) (“only in the most exceptional circumstances will injunctive relief be denied in a case of deliberate infringement”); Blue Bell, Inc. v. Ruesman, 335 F.Supp. 236, 237 (N.D.Ga.1971); American Hospital Association v. Bankers Commercial Life Insurance Co., 275 F.Supp. 563, 565 (N.D.Tx.1967), aff’d per curiam, 403 F.2d 718 (5th Cir. 1968), cert. denied, 394 U.S. 1018, 89 S.Ct. 1629, 23 L.Ed.2d 43 (1969); Trademarks and Tradenames, 74 Am.Jur.2d § 159 (1974). Finally, the Court observes that defendant has made no showing of prejudice because of any delay, a factor normally considered when laches is asserted. See, Tisch Hotels, supra, at 615 (Delay must amount to “virtual abandonment” so that “balance of equities would favor the knowing infringer.”); Cuban Cigar Brands N.V. v. Upmann International, Inc., 457 F.Supp. 1090, 1096-98 & n.29 (S.D.N.Y.1978) (delay alone does not constitute laches). In light of the facts presented, the Court holds that the circumstances do not warrant a finding that laches bars plaintiff’s relief. See Coca-Cola Co. v. Howard Johnson Co., 386 F.Supp. 330, 334 (N.D.Ga.1974) (“Whether laches bars an action depends on the circumstances of the particular case and is a question addressed to the discretion of the trial court.”) B. Indispensable Party Defendant claims that Alpha Trading Company because it co-owns the Abu Bint mark is an indispensable party without whom this action may not proceed. However, no evidence produced at the hearing demonstrates that Alpha is a co-owner. The testimony indicates instead that Alpha is ARI’s exclusive agent with the right to help register the Abu Bint mark. ARI did not intend to assign and has not assigned" }, { "docid": "4677097", "title": "", "text": "Terkel v. Hearth Rooms, Inc., 410 F.Supp. 1160, 1162 (W.D.Pa.1976); 12 Williston on Contracts § 1455 (W. Jaeger 3d ed. 1970). The process for determining price that was chosen by the parties was not at the very heart of the contract between them. Rather, the essence of their agreement was that the stock would change hands at fair market value. All that is required of this court is, with the aid of the jury, to set the “fair market value.” Having determined market value of the stock as of January 31,1985 to be $15,800,-000, the contract between the parties is enforceable in every respect. B. Defendants’ Equitable Defenses The clean hands doctrine is applicable when 1) a party seeking affirmative relief 2) is guilty of conduct involving fraud, deceit, unconscionability, or bad faith 3) directly related to the matter in issue 4) that injures the other party 5) and affects the balance of equities between the litigants. See Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814-15, 65 S.Ct. 993, 997-98, 89 L.Ed. 1381 (1945) (clean hands doctrine requires that suitors “shall have acted fairly and without fraud or deceit as to the controversy in issue”); Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., 747 F.2d 844, 855 (3d Cir.1984), (unclean hands defense applies when plaintiff’s conduct is “inequitable,” “egregious,” and “involves the subject matter of the plaintiff’s claim”), cert. denied, 471 U.S. 1137, 105 S.Ct. 2678, 86 L.Ed.2d 696 (1985); International Union, Allied Industrial Workers v. Local 589, 693 F.2d 666, 672 (7th Cir.1982) (“bad conduct constituting unclean hands must involve fraud, unconscionability or bad faith toward the party proceeded against” which “ ‘affect[s] the equitable relations between the litigants’ ” and doctrine “only applies when there is a direct nexus between the bad conduct and the activities sought to be enjoined”) (quoting Washington Capitols Basketball Club v. Barry, 419 F.2d 472, 478 (9th Cir.1969)); Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir.1979) (“alleged wrongdoing of the plaintiff does not bar relief unless the defendant can show that he has personally" }, { "docid": "1434909", "title": "", "text": "operations would undoubtedly be disrupted, at least for a time by the discontinuance of the use of the Dunhill mark and it might indeed not be able to replace it with as good a seller. However, in light of our finding that there is likelihood of confusion, the success of the defendant’s product at least in part may be attributable to the confusion of source. In any event, the holding in Jenn-Air (see discussion supra) ineluctably requires the conclusion that the defendant has suffered no prejudice where nothing (.more is shown than that it has continued to sell the infringing product for the period in question. In any event, we agree with the' court in' Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir. 1965), which observed: “If this prejudice could consist merely of expenditures in promoting the infringed name, then relief would have to be denied in practically every case of delay.” Moreover, at least part of defendant’s success with the infringing mark, the loss of which would, it is claimed, be prejudicial, may be attributable to the confusion of source. Finally, as we have previously found, the defendant cannot be classified as an innocent infringer. The defendant adopted the trademark “Dunhill” and the tradename “Dunhill Distillers” knowing of the plaintiff’s reputation and image. It would seem that many other marks existed that could have been used to denote “stability,” “age,” “British flavor,” etc. Our finding, while not of fraudulent intent, is such that we can say that defendant assumed the risk that it might be infringing on the plaintiff’s rights when it adopted the same mark on related goods and was fully aware of the plaintiff's mark and reputation. Failing to find inexcusable delay, prejudice or innocence, we hold that defendant has sustained neither the defense of laches nor that of equitable estoppel. E. The Fourth Affirmative Defense The defendant has asserted that some or all of the plaintiff’s trademark registrations were procured by false and fraudulent statements made under oath to the Patent Office, and, therefore, the plaintiff is guilty of “unclean hands”" }, { "docid": "10792246", "title": "", "text": "relief in this action. Callman suggests that this is no defense where the defendant has engaged in unfair competition: “In principle, the defendant cannot avail himself of the defense that other competitors are engaging in the very same acts of unfair competition of which he has been accused, and he cannot invoke the doctrine of estoppel on the ground that the plaintiff has' knowingly permitted the use and registration of the disputed mark by third parties not in privity with defendant.” (4 Callman, The Law of Unfair Competition, .Trademarks and Monopolies, § 87.3(e) at 152 (3d Ed. 1970).) Numerous cases have rejected this defense, holding that the existence of infringers other than the defendant was irrelevant to a determination of whether the defendant should be enjoined from continuing in its infringement of plaintiffs’ trademarks and in its unfair competition. See, e.g., Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 614 (7 Cir. 1965); National Lead Company v. Wolfe, 223 F.2d 195, 204 (9 Cir. 1955); Del Monte Special Food Co. v. California Packing Corporation, 34 F.2d 774, 777 (9 Cir. 1929); James Burrough Ltd. v. Lesher, 309 F. Supp. 1154, 1160 (S.D.Ind.1969). That there are other “Junior Chambers” who have disaffiliated from National and State and against whom plaintiffs have not instituted legal proceedings is irrel evant to this Court’s consideration of whether injunctive relief should issue. Unclean Hands Defendant SFJCC also contends that because plaintiffs chartered a new local San Francisco chapter, the San Francisco-Golden Gate Jaycees, while this litigation was pending, they are barred from obtaining equitable relief because they have come to this Court with unclean hands. Defendant asserts that by the timing of this act, plaintiffs sought to confuse and mislead the public as to the new chapter’s connection with the disaffiliate defendant. It is a well-established principle of law that one seeking equitable relief must not come to the court with unclean hands. Precision Co. v. Automotive Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). What constitutes “unclean hands” barring a court from granting equitable relief is a determination" }, { "docid": "21999072", "title": "", "text": "used by the parties, it supplies the crowning touch in support of my conclusion that Casper’s certificate of authenticity creates a likelihood of confusion with John Wright’s. Maternally Yours, Inc. v. Your Maternity Shop, 234 F.2d 538, 543 (2d Cir. 1956). See also Tefal, S.A. v. Products Internat'l Co., 529 F.2d 495, 497 (3d Cir. 1976). 3. Casper’s Affirmative Defenses a. Laches The burden is on Casper to prove that John Wright delayed bringing this action; that such delay was “inexcusable”; and that Casper was prejudiced by reason of the delay. Jenn-Air Corp. v. Penn Ventilator Co., 464 F.2d 48 (3d Cir. 1972). Moreover, the mere fact that Casper spent money to promote its certificate of authenticity during the period of alleged delay does not establish the “prejudice” required by Jenn-Air. Accord, Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 615 (7th Cir. 1965); Alfred Dunhill of London, Inc. v. Kasser Distillers Prods. Corp., 350 F.Supp. 1341, 1364-68 (E.D.Pa.1972), affd. without opinion, 480 F.2d 917 (3d Cir. 1973); Goebel Brew-Co., supra. Where, as here, the defendant is a “non-innocent infringer,” its burden is even heavier, for it must prove that the plaintiff’s delay “is so prolonged and inexcusable that it amounts to a virtual abandonment of the right by the plaintiff for a long period of time . .” Tisch Hotels, supra, at 615. The length of time necessary to establish inexcusable delay varies from case to case, depending upon the particular circumstances involved. Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966). There is no evidence in this case either of inexcusable delay, prejudice, or abandonment of the plaintiff’s right to claim legal protection for its certificate of authenticity. As for delay: there was a lapse of 12 to 18 months, at most, between the time John Wright learned the corporate identity of Casper and the filing of the instant Complaint. During that time Casper pursued a merchandising plan of progressive encroachment in the market, increasingly direct competition, and — in mid-to-late 1974 — “sudden promotional expansion aimed at exploitation of [the]" }, { "docid": "4677099", "title": "", "text": "been injured by the plaintiff’s conduct”), cert. denied, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980); Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir.1976) (application of unclean hands doctrine is an “extreme sanction ... [which] requires a [substantial] showing of fault, willfullness or bad faith”), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977); John Wright, Inc. v. Caspar Corp., 419 F.Supp. 292, 324 (E.D.Pa.1976) (“The courts of Pennsylvania interpret [the defense of unclean hands] narrowly and are loathe to bar relief except where the plaintiff’s conduct is clearly on point and ‘change[s] the equitable relationship of the parties.’ ”) (quoting Goebel Brewing Co. v. Esslingers, Inc., 373 Pa. 334, 349, 95 A.2d 523 (1953)), aff'd in part and rev’d in part sub nom., Donsco, Inc. v. Caspar Corp., 587 F.2d 602 (3d Cir.1978). Although the first and third elements have been satisfied in this case, defendants have failed to establish the second, fourth and fifth elements. The defendants are precluded, therefore, from raising the doctrine of unclean hands as a defense to plaintiffs’ action. During a trial that lasted nearly three weeks, an insufficient amount of evidence surfaced to support a finding of fraud, deceit or bad intent on the part of the trustees. In addition, the trustees’ submission of an improper appraisal did not injure the defendants who, under the stock purchase agreement, had a right to correct any injury that might otherwise have occurred by submitting a valid appraisal. Furthermore, the submission of an improper appraisal by the trustees did not change the balance of equities between the parties. A defendant wishing to interpose the defense of unclean hands must show that “the plaintiffs’ fault is substantially equal to that of the defendant.” Tarasi v. Pittsburgh Nat’l Bank, 555 F.2d 1152, 1157 (3d Cir.) (explaining “companion principle” of in pari delicto), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 451 (1977); Mallis v. Bankers Trust Co., 615 F,2d 68, 76 (2d Cir.1980) (Friendly, J.) (defense of unclean hands requires “equal guilt” under New York law), cert." }, { "docid": "7844507", "title": "", "text": "delay for laches for copyright infringement claims runs only from the time that the plaintiff knew or should have known about an actual or impending infringement, not an adverse claim of ownership.” Id. at 1036; see Entous v. Viacom Intern., Inc., 151 F.Supp.2d 1150,1155 (C.D.Cal.2001) (citing Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994)) (“Under federal copyright law, a cause of action for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge.”); see also McIntosh v. N. Cal. Univ. Enter. Co., 670 F.Supp.2d 1069,1100 (E.D.Cal.2009). Here, Defendants contend that “BBTV slept on its purported right — for ten months — and caused prejudice to IPTV.” (Defs.’ Opp’n 15.) However, Defendants fail to show that ten months is an unreasonable delay. See Roulo v. Russ Berrie & Co., 886 F.2d 931, 942 (7th Cir. 1989) (“A two year delay in filing an action following knowledge of the infringement has rarely been held sufficient to constitute laches.”); see also 3-12 M. Nimmer & D. Nimmer, Nimmer on Copyrights, § 12.06(B)(2), at 12-149 (2006). Accordingly, because ten months is not an unreasonable delay, Defendants’ laches defense fails. 3. Unclean Hands “[H]e who comes into equity must come with clean hands. This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks, however improper may have been the behavior of the defendant.” Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (9th Cir.1945). “Under this doctrine, plaintiffs seeking equitable relief must have acted fairly and without fraud or deceit as to the controversy in issue.” Intamin, Ltd. v. Magnetar Tech. Corp., 623 F.Supp.2d 1055,1074 (C.D.Cal.2009) (citing Adler v. Fed. Republic of Nigeria, 219 F.3d 869, 877 (9th Cir.2000)). Consequently, “[t]his maxim necessarily gives wide range to the equity court’s use of discretion in refusing to aid the unclean litigant.” Id. at 815, 65 S.Ct. 993;" } ]

[ { "docid": "8611418", "title": "", "text": "from considering the sufficiency of the evidence at the Rule. 12 stage, we have never explicitly held that such an exception exists, much less defined its contours. We decline to do so now. We simply hold that, assuming an exception exists for cases involving a stipulated record or immunity issues, the circumstances of this case do not trigger it. . We note that there is a split among our sister circuits as to whether a district court is ever permitted to rule on a motion to dismiss based on the sufficiency of the evidence. Some courts have indicated that in “rare” and “unusual” cases, it may be appropriate for a court to look to the sufficiency of the evidence. See, e.g., United States v. Levin, 973 F.2d 463, 466-67 (6th Cir.1992) (affirming district court’s dismissal of an indictment under Rule 12 where the prosecutor conceded that the facts were undisputed, and based on the undisputed facts, the defendant could not have formed the requisite intent to commit the crime). Other circuits have rejected this approach. See, e.g., United States v. Salman, 378 F.3d 1266, 1268 (11th Cir.2004) (holding that \"there is no explicit authority to grant a pre-trial judgment as a matter of law on the merits under the Federal Rules of Criminal Procedure” and thus, the government should be allowed to present its evidence at trial, subject to the defendant’s moving for a judgment of acquittal under Federal Rule of Criminal Procedure 29). . In McDonald v. City of Chi., - U.S. -, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010), a splintered plurality of the Supreme Court held that the Second Amendment is applicable to the states, through the Fourteenth Amendment. . Although some of our sister circuits have classified the \"presumptively lawful” language in Heller as dicta, see United States v. Scroggins, 599 F.3d 433, 451 (5th Cir.2010); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009) (Tymkovich, J., concurring), we disagree. In United States v. Barton, 633 F.3d 168, 171 (3d Cir.2011), we explicitly held that Heller's list of \"presumptively lawful” regulations was not dicta," } ]

[ { "docid": "9019736", "title": "", "text": "criminal setting, on the record here. C To be sure, in United States v. Alfonso , 143 F.3d 772 (2d Cir. 1998), we outlined a narrow exception to the rule that a court cannot test the sufficiency of the government's evidence on a Rule 12(b) motion. In Alfonso, the district court dismissed a Hobbs Act robbery count pretrial in response to the defendants' Rule 12(b) motion, concluding that \"the Government [failed to adduce] sufficient facts to establish a nexus between the robbery allegedly committed by [the defendants] and any obstruction of interstate commerce.\" Id. at 773-74. As here, we held that the district court's \"inquiry into the sufficiency of the [government's] evidence\" on this issue \"was premature.\" Id . at 776. We distinguished United States v. Mennuti , 639 F.2d 107 (2d Cir. 1981), which upheld a pretrial sufficiency-of-the-evidence ruling where the government had voluntarily submitted an affidavit containing the entirety of its proof. Alfonso , 143 F.3d at 777 ; see also Mennuti , 639 F.2d at 108 & n.1. Alfonso made clear that \"[u]nless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial,\" the sufficiency of the evidence is not appropriately addressed by a Rule 12(b) motion pretrial. Alfonso , 143 F.3d at 776-77. The exception employed in Mennuti and elaborated on in Alfonso is extraordinarily narrow. As Alfonso states, the government must make a \"detailed presentation of the entirety of the evidence\" before a district court can dismiss an indictment on sufficiency grounds. Id. at 777. Moreover, our research reveals-and the parties cite-no federal appellate case upholding the authority of a district court to require the government, before trial, to make such a presentation. Indeed, if the district court possessed such authority, it could effectively force a summary judgment-like motion on the government-and, as explained above, summary judgment does not exist in federal criminal procedure. See Huet , 665 F.3d at 595 ; Pope , 613 F.3d at 1259-60 ; Yakou , 428 F.3d at 246 ; Salman , 378 F.3d at 1268. Simply" }, { "docid": "6579524", "title": "", "text": "area for necessary management. STANDARDS I. Summary Judgment Standards Do Not Apply The parties have filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56. The Ninth Circuit has endorsed the summary judgment motion as “ ‘an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.’ ” City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.1997) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 770 (9th Cir.1985)). See also Girling Health Care, Inc. v. Shalala, 85 F.3d 211, 214-15 (5th Cir.1996) (“‘The summary judgment procedure is particularly appropriate in cases in which the court is asked to review or enforce a decision of a federal administrative agency.’ ”) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2733 (1983)). As counsel stipulated at the hearing, however, the Administrative Procedure Act (APA) governs judicial review here. See Lodge Tower Condo. Ass’n v. Lodge Properties, Inc., 880 F.Supp. 1370, 1374 (D.Colo.1995) (summary judgment “makes no procedural sense when a district court is asked to undertake judicial review of agency action”), aff'd, 85 F.3d 476 (10th Cir.1996)). The legal standards for resolving a motion for summary judgment are “inconsistent with the standards for judicial review of agency action” under the APA. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579 (10th Cir.1994). That is because summary judgment procedures are designed to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When this court reviews an agency decision, however, there will be no trial or disputed issues of fact. See Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 689 F.Supp.2d 891, 894-95 (W.D.Ky.2010) (“the rules governing summary judgments do not apply because of the limited role of a court in reviewing the administrative record”). For example, Rule 56(c)(1)(A) allows parties to submit “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or" }, { "docid": "21447058", "title": "", "text": "of the district court’s determination of whether or not the proffered material, and the resulting conversion from the Rule 12(b)(6) to the Rule 56 procedure, is likely to facilitate the disposition of the action.’ ” Car-ione v. United States, 368 F.Supp.2d 186, 191 (E.D.N.Y.2005) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, Civil § 1366 (3d ed. 2004)). A district court gives notice to the parties before it converts a motion to dismiss into one for summary judgment. See Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir.1991). Conversion on the statute of limitations issue in this case is appropriate in light of the extensive appendices supplied by defendants to support their motion to dismiss and the complex fact-specific nature of a statute of limitations and inquiry notice defense. See Lentell v. Merrill Lynch & Co., 396 F.3d 161, 169 (2d Cir.2005); LC Capital Partners, LP v. Frontier Ins. Group, Inc., 318 F.3d 148, 156 (2d Cir.2003). The parties were given advance notice of the desirability of conversion when the motion to dismiss was filed. They agreed to proceed under Rule 56 of the Federal Rules of Civil Procedure. Discovery on the statute of limitations issue by both sides was permitted. The motion for summary judgment was fully briefed and argued. B. Summary Judgment Standard Summary judgment is appropriate only if “there is no genuine issue as to any material fact ... [in which case] the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Mitchell v. Washingtonville Central School District, 190 F.3d 1, 5 (2d Cir.1999). “[0]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The court’s responsibility on summary judgment is not to resolve disputed issues of fact but to assess whether there are factual issues to be" }, { "docid": "3967511", "title": "", "text": "cannot grant summary judgment based on its assessment of the credibility of the evidence presented”); Am. Ins. Co. v. United States, 62 Fed.Cl. 151, 154 (2004). The court must determine whether the evidence presents a disagreement sufficient to require fact finding, or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 250-52, 106 S.Ct. 2505; see also Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (“ ‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmov-ing party, there is no genuine issue for trial.’” (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348)). Where there is a genuine dispute, all facts must be construed, and all inferences drawn from the evidence must be viewed, in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Stovall v. United States, 94 Fed.Cl. 336, 344 (2010); L.P. Consulting Grp., Inc. v. United States, 66 Fed.Cl. 238, 240 (2005). Where, as here, a court considers cross-motions for (partial) summary judgment, it must view each motion, separately, through this prism. A. Ownership Interest In Preseault v. United States, 100 F.3d 1525, 1538 (Fed.Cir.1996) (en banc), the Federal Circuit held that a threshold issue in rails-to-trails cases is who owned the land involved, with particular focus on whether the railroad in question acquired only an easement or instead obtained fee simple title to the corridor. “Clearly, if the Railroad obtained fee simple title to the land over which it was to operate, and that title inures, as it would, to its successors,” the court observed, a plaintiff “would have no right or interest in those parcels and could have no claim related to those parcels for a taking.” Id.; see also Sutton v. United States, 107 Fed.Cl. 436, 438 (2012). The Federal Circuit went on to explain that if an easement is found," }, { "docid": "994001", "title": "", "text": "on: “(a) the evidence presented in the summary judgment proceedings, (b) the evidence presented at the [Damages] [T]rial, ... (c) the jury’s Verdict and answers to the Jury Interrogatories, and ... (d) the record established in the related criminal proceedings ....” PI. 1st Ex. G at 1, 3. The Final Judgment awarded Allison: (1) compensatory damages of $104,200, plus prejudgment interest on this amount at the applicable statutory rates beginning on December 1, 2009 through.the date of the entry of the Final Judgment; (2) punitive damages in the amount of $1,850,000; (3) attorneys’ fees in the amount of $651,400; and (4) costs in the amount of $4,582.92 (collectively, the “Debt”). Id. at 8. Allison filed a notice in the adversary proceeding informing this Court that the Final Judgment had been entered by the State Court. Adv. Doc. 35. Following a status conference, Allison filed the Motion (Adv. Doc. 38) along with multiple supporting exhibits (Adv. Doc. 39). Dardinger filed a response (the “Response”) (Adv. Doc. 45), and Allison filed a reply (the “Reply”) (Adv. Doc. 52) along with supplemental exhibits (Adv. Docs. 49 & 50). IV. Legal Analysis A. Summary Judgment Standard Under Rule 56 of the Federal Rules of Civil Procedure, made applicable in this adversary proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (internal quotation marks omitted). A dispute is genuine only if it is “based on evidence upon which a reasonable [finder of fact] could return a [judgment] in favor of the non-moving party.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009). And “[a] factual dispute concerns" }, { "docid": "20274440", "title": "", "text": "the [S]tate [C]ourt[,]” Grimsley asserts that the Court may not infer that a finding of fraud was made by the jury in the State Court Case. Id. at 4-5. Relying on this Court’s decision in Schafer v. Rapp (In re Rapp), 375 B.R. 421, 429 (Bankr.S.D.Ohio 2007), Grimsley also contends that because the Court failed to accord preclusive effect to a state court judgment in that dischargeability case, it should likewise decline to do so here. According to Grimsley, whether the Debt arises from fraud is “an issue of material fact that must be adjudicated by this Court and cannot be inferred or disposed of through the summary judgment process.” Response at 5. VI. Legal Analysis A. Summary Judgment Standard Under Federal Rule of Civil Procedure 56 (“Civil Rule 56”), made applicable in this adversary proceeding by Federal Rule of Bankruptcy Procedure 7056, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Ricci v. DeStefano, — U.S.-, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (internal quotation marks omitted). A dispute is genuine only if it is “based on evidence upon which a reasonable [finder of fact] could return a [judgment] in favor of the non-moving party.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir.2009). And a “factual dispute concerns a ‘material’ fact only if its resolution might affect the outcome of the suit under the governing substantive law.” Id. B. Issue Preclusion As previously stated, in seeking summary judgment on his § 523(a)(2) claim, Miller relies on the doctrine of issue preclusion. Issue preclusion “applies in the context of dischargeability litigation.” Bachinski, 393 B.R. at 534 (citing Rally Hill Prods., Inc. v. Bursack (In re Bursack), 65 F.3d 51, 53 (6th Cir.1995) (“The doctrine of collateral estoppel applies in" }, { "docid": "9019737", "title": "", "text": "\"[u]nless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial,\" the sufficiency of the evidence is not appropriately addressed by a Rule 12(b) motion pretrial. Alfonso , 143 F.3d at 776-77. The exception employed in Mennuti and elaborated on in Alfonso is extraordinarily narrow. As Alfonso states, the government must make a \"detailed presentation of the entirety of the evidence\" before a district court can dismiss an indictment on sufficiency grounds. Id. at 777. Moreover, our research reveals-and the parties cite-no federal appellate case upholding the authority of a district court to require the government, before trial, to make such a presentation. Indeed, if the district court possessed such authority, it could effectively force a summary judgment-like motion on the government-and, as explained above, summary judgment does not exist in federal criminal procedure. See Huet , 665 F.3d at 595 ; Pope , 613 F.3d at 1259-60 ; Yakou , 428 F.3d at 246 ; Salman , 378 F.3d at 1268. Simply put, the government in Sampson's case cannot \"fairly\" be said to have made \"a full proffer of the evidence it intends to present at trial\" concerning the precise time at which Sampson formed the intent to fraudulently convert the funds at issue in Counts 1 and 2. See Alfonso , 143 F.3d at 776-77. There was some dispute about this point at oral argument. Sampson's counsel posited that the government had in fact made a \"full proffer\" of its evidence. But we cannot conclude that to be the case. During a hearing, the district court asked the government whether it had other evidence to support its position concerning the statute of limitations. See Gov't App'x at 102. The government proffered some additional evidence after the hearing. See id. at 159-67. But it was clear that the government had not yet proffered all of its evidence. See, e.g. , id. at 102 (mentioning \"statements attributed to Mr. Sampson, at the time that, for example, he created the 2006 check, the check in which he emptied the" }, { "docid": "9019727", "title": "", "text": "that a defendant charged in 1967 under an indictment alleging a willful failure to register for the draft in 1959 may raise the statute-of-limitations issue in a pre-trial motion). But when such a defense raises dispositive \"evidentiary questions,\" a district court must defer resolving those questions until trial. See United States v. Knox, 396 U.S. 77, 83 & 83 n.7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969) ; see also United States v. Wilson , 26 F.3d 142, 159 (D.C. Cir. 1994) (\"[A] decision on a [ Rule 12 ] motion should be deferred[ ] if disposing of the motion involves deciding issues of fact that are inevitably bound up with evidence about the alleged offense itself.\"); United States v. Shortt Accountancy Corp. , 785 F.2d 1448, 1452 (9th Cir. 1986) (\"If [a] pretrial claim is 'substantially founded upon and intertwined with' evidence concerning the alleged offense, the motion falls within the province of the ultimate finder of fact and must be deferred.\" (quoting United States v. Williams , 644 F.2d 950, 953 (2d Cir. 1981) ) ). Here, the government disputes the precise timing of Sampson's alleged fraudulent conversion and argued before the district court that it was premature to adjudicate Sampson's statute-of-limitations defense when the indictment was sufficient on its face and the government had not proffered all its evidence. In rejecting this argument, the district court essentially granted \"summary judgment\" to Sampson. Because the civil summary judgment mechanism does not exist in federal criminal procedure and the district court acted prematurely in addressing the statute-of-limitations issue, we vacate the district court's decision of August 12, 2015, reinstate the two embezzlement counts, and remand. B The drafters of the Federal Rules of Criminal Procedure \"cross-pollinated\" the Rules with principles from the Federal Rules of Civil Procedure. James Fallows Tierney, Comment, Summary Dismissals , 77 U. Chi. L. Rev. 1841, 1843 (2010). Conspicuously absent from the Federal Rules of Criminal Procedure, however, is an analogue for summary judgment under Federal Rule of Civil Procedure 56. See United States v. Yakou , 428 F.3d 241, 246 (D.C. Cir. 2005) (\"There" }, { "docid": "9019729", "title": "", "text": "is no federal criminal procedural mechanism that resembles a motion for summary judgment in the civil context.\"); accord United States v. Huet , 665 F.3d 588, 595 (3d Cir. 2012) ; United States v. Pope , 613 F.3d 1255, 1259-60 (10th Cir. 2010) (Gorsuch, J. ); United States v. Salman , 378 F.3d 1266, 1268 (11th Cir. 2004) (per curiam); United States v. Boren , 278 F.3d 911, 914 (9th Cir. 2002) ; United States v. Nabors , 45 F.3d 238, 240 (8th Cir. 1995). Motions for summary judgment allow judges to examine the evidence adduced by both sides before trial and award judgment if, based on the proffered evidence, no rational trier of fact could find for the non-moving party. See Fed. R. Civ. P. 56(a) ; Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The summary judgment motion in civil actions existed at the time of the creation of the Federal Rules of Criminal Procedure, but the Rules' drafters decided not to transplant this particular flower out of the foreign soil of civil procedure. See Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History , 86 Fordham L. Rev. 697, 710 (2017). Accordingly, although a judge may dismiss a civil complaint pretrial for insufficient evidence, a judge generally cannot do the same for a federal criminal indictment. See United States v. Williams, 504 U.S. 36, 53, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) ; United States v. Calandra , 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ; Costello v. United States , 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed. 397 (1956) ; see also United States v. Guerrier , 669 F.3d 1, 4 (1st Cir. 2011) (\"[C]ourts routinely rebuff efforts to use a motion to dismiss as a way to test the sufficiency of the evidence behind an indictment's allegations ....\"). This distinction between federal civil and criminal procedure comports with broader differences between the civil and criminal regimes. First, federal criminal discovery is far more limited than federal civil discovery." }, { "docid": "14008233", "title": "", "text": "a violation of the Brokering Amendment, is equivalent to aiding and abetting such an act and thus cannot be used as a separate basis for establishing jurisdiction over him. II. This court reviews de novo the district court’s dismissal of an indictment based on questions of law. See, e.g., United States v. Marks, 379 F.3d 1114, 1116 (9th Cir.2004); United States v. Atandi, 376 F.3d 1186, 1188 (10th Cir.2004). On appeal, the United States contends that the district court erred by dismissing the indictment before trial, when the Federal Rules of Criminal Procedure do not provide a mechanism for summary judgment, by ruling that LPR status can change without administrative action by immigration officials, such that Yakou was not a “U.S. person,” as defined by the ITAR, who is subject to prosecution for brokering activities, and by ruling\" that Yakou could not be indicted separately under 18 U.S.C. § 2 as an aider and abettor of his son’s alleged violations of the brokering provisions. The United States does not contend that, notwithstanding the district court’s ruling on Yakou’s loss of LPR status, the indictment charges a valid offense against him as a principal under 22 U.S.C. § 2778(b)(2); the district court did not rule on that issue, and we do not address it. A. Pretrial dismissal of indictment. There is no federal criminal procedural mechanism that resembles a motion for summary judgment in the civil context. See, e.g., United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir.2000); United States v. Nabors, 45 F.3d 238, 240 (8th Cir.1995). Instead, Rule 12(b) of the Federal Rules of Criminal Procedure provides that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” The “general issue” has been defined as “evidence relevant to the question of guilt or innocence.” United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.1987) (citing United States v. Barletta, 644 F.2d 50, 58 (1st Cir.1981)). While Rule 12(b) does not explicitly authorize the pretrial dismissal of an indictment on sufficiency-of-the-evidence grounds, the United States" }, { "docid": "17887928", "title": "", "text": "omitted). Stated differently, the mere existence of a “scintilla of evidence” in support of the non-movant’s position will not suffice; there must be enough evidence on which the trier of fact could reasonably find for the non-movant. Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir.2011) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). B. Motions for Summary Judgment in Actions for Employment Discrimination or Retaliation In recognition of the difficulty in uncovering clear evidence of discriminatory or retaliatory intent, the district court should approach summary judgment in an action for employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), vacated on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc). Even so, the plaintiff is not relieved of his burden to support his allegations with competent evidence. Brown v. Mills, 674 F.Supp.2d 182, 188 (D.D.C.2009). As in any context, where the plaintiff will bear the burden of proof at trial on a dispositive issue, at the summary judgment stage, he bears the burden of production to designate specific facts showing that there is a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009). Absent this burden, the plaintiff could effectively defeat the “central purpose” of the summary judgment device — namely, “to weed out those cases insufficiently meritorious to warrant ... trial”- — simply by way of offering conclusory allegations, speculation, and argument. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). C. Local Procedures for Motions for Summary Judgment The United States District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts for which that party contends there is no genuine dispute. In turn, the party opposing the motion must submit a responsive statement enumerating all material facts that the party contends are genuinely disputed. See LCVR 7(h)(1). Both the movant’s initial statement and the nonmovant’s responsive statement must be based on “references" }, { "docid": "17887929", "title": "", "text": "specific facts showing that there is a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009). Absent this burden, the plaintiff could effectively defeat the “central purpose” of the summary judgment device — namely, “to weed out those cases insufficiently meritorious to warrant ... trial”- — simply by way of offering conclusory allegations, speculation, and argument. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). C. Local Procedures for Motions for Summary Judgment The United States District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts for which that party contends there is no genuine dispute. In turn, the party opposing the motion must submit a responsive statement enumerating all material facts that the party contends are genuinely disputed. See LCVR 7(h)(1). Both the movant’s initial statement and the nonmovant’s responsive statement must be based on “references to the parts of the record relied on to support the statement.” Id.', see also Fed.R.Civ.P. 56(c)(1) & (3) (requiring parties to “cit[e] to particular parts of materials in the record” and providing that “[t]he court need consider only the cited materials.”). This well-reasoned rule “places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C.Cir.1996). The parties in these actions have been cautioned on several occasions that this Court strictly adheres to the dictates of Local Civil Rule 7(h)(1) when resolving motions for summary judgment. See 6/11/09 Scheduling & Procedures Order (Civil Action No. 09-462) ¶ 6; 5/13/10 Order (Civil Action No. 09-462) at 3; Tr. of 5/13/10 Status Hr’g (Civil Action No. 09-462) at 21-22. III. DISCUSSION A. Discussion Relating to Plaintiff Mable Gaines Gaines is pursuing four claims under Title VII, each of which is based" }, { "docid": "10140377", "title": "", "text": "Neb. Rev. Stat. §§ 48-1101, et seq.; Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq.; Nebraska Age Discrimination in Employment Act, Neb. Rev. Stat. §§ 48-1001, et seq. MJ Optical moved for summary judgment about one year later. See Fed. R. Civ. P. 56. Despite iioting Marty’s behavior was “without a doubt disgusting,” the district court granted MJ Optical’s motion and dismissed Blake’s claims with -prejudice. We must now determine whether that decision was the right one. II. DISCUSSION Blake maintains three claims on appeal: (1) disparate treatment based on sex discrimination; (2) disparate treatment based on age discrimination; and (3) hostile work environment. We review the grant of summary judgment on each claim de novo. See Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). We must affirm summary judgment if “there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). In assessing whether such a dispute exists, we view the evidence in the light most favorable to Blake and afford her all reasonable inferences. See Edwards v. Hiland Roberts Dairy, Co., 860 F.3d 1121, 1125 (8th Cir. 2017). Still, there must be enough evidence to allow “‘a rational trier of fact’” to find for Blake on the required elements of her claims. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)); see also Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (“[I]f a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.”). A. Sex Discrimination An -employer cannot discriminate against an employee “because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1); Neb. Rev. Stat. § 48-1104(1). Blake can defeat summary judgment by “producing] direct evidence of discrimination,” or by “creat[ing] an inference of discrimination under the burden-shifting framework of McDonnell Douglas.” Ames v. Nationwide Mut. Ins. Co., 760 F.3d 763, 767 (8th Cir. 2014) (citing McDonnell Douglas" }, { "docid": "10705492", "title": "", "text": "is no court order removing the Property from the bankruptcy estate, and that “absent such Order, the real property remains property of the estate despite the Creditor being granted relief from stay to pursue [its] state court remedies and despite the Debtors’ election under 11 U.S.C. § 1325(a)(5) to surrender their interests to the claimholder.” Id. The Complaint seeks a declaration that the Trustee retains an interest in the Property and may pursue such interest for the benefit of the Chapter 13 estate. Id. at 5. Although it is unstated in the papers filed in this adversary proceeding, the Trustee states in his application to employ counsel (Doc. 48) that he intends to initiate an adversary proceeding to avoid the mortgage as to Mrs. Crum’s unencumbered one-half interest in the Property and recover the asset for the benefit of the estate. Id. at 2. III. Legal Analysis A.Summary Judgment Standard Under Rule 56 of the Federal Rules of Civil Procedure (“Civil Rule(s)”), made applicable in this adversary proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). “On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (internal quotation marks omitted). A dispute is genuine only if it is “based on evidence upon which a reasonable [finder of fact] could return [a judgment] in favor of the non-moving party.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir.2009). And a “factual dispute concerns a ‘material’ fact only if its resolution might affect the outcome of the suit under the governing substantive law.” Id. “The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by only" }, { "docid": "994002", "title": "", "text": "52) along with supplemental exhibits (Adv. Docs. 49 & 50). IV. Legal Analysis A. Summary Judgment Standard Under Rule 56 of the Federal Rules of Civil Procedure, made applicable in this adversary proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (internal quotation marks omitted). A dispute is genuine only if it is “based on evidence upon which a reasonable [finder of fact] could return a [judgment] in favor of the non-moving party.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009). And “[a] factual dispute concerns a ‘material’ fact only if its resolution might affect the outcome of the suit under the governing substantive law.” Id. “The party moving for summary judgment always bears the initial responsibility of informing the 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.” Ray’s Servs., Inc. v. Cunningham (In re Cunningham), No. 12-3201, 2014 WL 1379136, at *2 (Bankr. N.D. Ohio Apr. 8, 2014) (internal quotation marks omitted) (quoting Celotex Carp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). B. Section 523(a)(6) Allison seeks a judgment that the Debt is excepted from discharge under § 523(a)(6) of the Bankruptcy Code, which provides that an individual debtor is not discharged from any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). For an injury to" }, { "docid": "14008235", "title": "", "text": "failed to object in the district court to its pretrial determination of whether Yakou was a “U.S. person” covered by the Brokering Amendment and the ITAR. Indeed, the United States provided Yakou with discovery regarding his pretrial jurisdictional claim and also introduced evidence to bolster its claim that Yakou retained his LPR status, quite possibly because it would have been unable to appeal a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure as jeopardy would have attached, see United States v. Alfonso, 143 F.3d 772, 777 n. 7 (2d Cir.1998). Several circuits have upheld, in the absence of a government objection, the district court’s pretrial dismissal of an indictment on suffíciency-of-the-evidence grounds where the material facts are undisputed and only an issue of law is presented. See United States v. Phillips, 367 F.3d 846, 855 & n. 25 (9th Cir.2004); United States v. Hall, 20 F.3d 1084, 1087-88 (10th Cir.1994); United States v. Levin, 973 F.2d 463, 470 (6th Cir.1992); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir.1988). Other circuits have recognized that a district court can properly adjudge the sufficiency of the evidence before trial where the government has made a full proffer of evidence or where there is a stipulated record, situations similar to the undisputed facts at issue here. See DeLaurentis, 230 F.3d at 660-61 (3d Cir.); Alfonso, 143 F.3d at 776-77 (2d Cir.); cf. Nabors, 45 F.3d at 240 (8th Cir.). Only the Eleventh Circuit has held that even where there are undisputed facts a district court may not engage in a pretrial determination of the sufficiency of the evidence, see United States v. Salman, 378 F.3d 1266, 1267-69 (11th Cir.2004), but there was no indication that the government failed to object in the district court, Although this court has not directly spoken on the issue, it has upheld a pretrial dismissal of counts of an indictment based on a question of law. See, e.g., United States v. Espy, 145 F.3d 1369, 1370 (D.C.Cir.1998); United States v. Oakar, 111 F.3d 146, 147-50 (D.C.Cir.1997). The United States’s procedural challenge to" }, { "docid": "14008234", "title": "", "text": "ruling on Yakou’s loss of LPR status, the indictment charges a valid offense against him as a principal under 22 U.S.C. § 2778(b)(2); the district court did not rule on that issue, and we do not address it. A. Pretrial dismissal of indictment. There is no federal criminal procedural mechanism that resembles a motion for summary judgment in the civil context. See, e.g., United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir.2000); United States v. Nabors, 45 F.3d 238, 240 (8th Cir.1995). Instead, Rule 12(b) of the Federal Rules of Criminal Procedure provides that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” The “general issue” has been defined as “evidence relevant to the question of guilt or innocence.” United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.1987) (citing United States v. Barletta, 644 F.2d 50, 58 (1st Cir.1981)). While Rule 12(b) does not explicitly authorize the pretrial dismissal of an indictment on sufficiency-of-the-evidence grounds, the United States failed to object in the district court to its pretrial determination of whether Yakou was a “U.S. person” covered by the Brokering Amendment and the ITAR. Indeed, the United States provided Yakou with discovery regarding his pretrial jurisdictional claim and also introduced evidence to bolster its claim that Yakou retained his LPR status, quite possibly because it would have been unable to appeal a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure as jeopardy would have attached, see United States v. Alfonso, 143 F.3d 772, 777 n. 7 (2d Cir.1998). Several circuits have upheld, in the absence of a government objection, the district court’s pretrial dismissal of an indictment on suffíciency-of-the-evidence grounds where the material facts are undisputed and only an issue of law is presented. See United States v. Phillips, 367 F.3d 846, 855 & n. 25 (9th Cir.2004); United States v. Hall, 20 F.3d 1084, 1087-88 (10th Cir.1994); United States v. Levin, 973 F.2d 463, 470 (6th Cir.1992); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir.1988)." }, { "docid": "9019728", "title": "", "text": "1981) ) ). Here, the government disputes the precise timing of Sampson's alleged fraudulent conversion and argued before the district court that it was premature to adjudicate Sampson's statute-of-limitations defense when the indictment was sufficient on its face and the government had not proffered all its evidence. In rejecting this argument, the district court essentially granted \"summary judgment\" to Sampson. Because the civil summary judgment mechanism does not exist in federal criminal procedure and the district court acted prematurely in addressing the statute-of-limitations issue, we vacate the district court's decision of August 12, 2015, reinstate the two embezzlement counts, and remand. B The drafters of the Federal Rules of Criminal Procedure \"cross-pollinated\" the Rules with principles from the Federal Rules of Civil Procedure. James Fallows Tierney, Comment, Summary Dismissals , 77 U. Chi. L. Rev. 1841, 1843 (2010). Conspicuously absent from the Federal Rules of Criminal Procedure, however, is an analogue for summary judgment under Federal Rule of Civil Procedure 56. See United States v. Yakou , 428 F.3d 241, 246 (D.C. Cir. 2005) (\"There is no federal criminal procedural mechanism that resembles a motion for summary judgment in the civil context.\"); accord United States v. Huet , 665 F.3d 588, 595 (3d Cir. 2012) ; United States v. Pope , 613 F.3d 1255, 1259-60 (10th Cir. 2010) (Gorsuch, J. ); United States v. Salman , 378 F.3d 1266, 1268 (11th Cir. 2004) (per curiam); United States v. Boren , 278 F.3d 911, 914 (9th Cir. 2002) ; United States v. Nabors , 45 F.3d 238, 240 (8th Cir. 1995). Motions for summary judgment allow judges to examine the evidence adduced by both sides before trial and award judgment if, based on the proffered evidence, no rational trier of fact could find for the non-moving party. See Fed. R. Civ. P. 56(a) ; Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The summary judgment motion in civil actions existed at the time of the creation of the Federal Rules of Criminal Procedure, but the Rules' drafters decided not to transplant this particular flower" }, { "docid": "18243174", "title": "", "text": "has the burden of proof. Ramming, 281 F.3d at 161. We review de novo a district court’s grant of judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Brittan Communs. Int’l Corp. v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir.2002). “[W]e must look only to the pleadings and accept all allegations contained therein as true.” Id. “The issue is not whether the plaintiffs will ultimately prevail, but whether they are entitled to offer evidence to support their claims.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir.2007). We also apply a de novo standard of review to a motion to dismiss under Rule 12(b)(1), and motions for summary judgment under Rule 56. LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir.2005). Summary judgment is appropriate if the moving party can show 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). “A factual dispute is ‘genuine’ where a reasonable party would return a verdict for the non-moving party.” Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 282 (5th Cir.2003) (citation omitted). In considering a summary judgment motion, we view the evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir.2006). However, “[Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.2003). III. Analysis A. The Contract Disputes Act “The Contract Disputes Act is a comprehensive statutory scheme for resolving contractual conflicts between the United States and government contractors.” United States v. J & E Salvage Co., 55 F.3d 985, 987 (4th Cir.1995); Menominee Indian Tribe v. United States, 614 F.3d 519, 521 (D.C.Cir.2010) (accord); Anselma Crossing, L.P. v. United States Postal Serv., 637 F.3d 238, 246 (3d Cir. 2011) (stating that “the policy goals of the CDA [are] to collect contract disputes against the government in a forum ... with both the requisite expertise and" }, { "docid": "9019731", "title": "", "text": "When the federal government acts as prosecutor in a criminal case, it does not face the same mandatory disclosure regime as when it acts as plaintiff in a civil case. Compare, e.g. , Fed. R. Crim. P. 16(a), with Fed. R. Civ. P. 26. To be clear, a federal criminal defendant can compel the government to disclose specified materials simply by asking for them, see, e.g. , Fed. R. Crim. P. 12.1(b), 12.2, 12.3, 16(a), and certain statutory provisions and constitutional mandates require significant disclosures, see, e.g. , 18 U.S.C. § 3500(b) ; Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But the fact remains that federal civil and criminal procedure are different, and that \"unlike their civil counterparts, criminal proceedings have no extensive discovery ... procedures requiring both sides to lay their evidentiary cards on the table before trial.\" Pope , 613 F.3d at 1259-60 ; see also United States v. Gottlieb , 493 F.2d 987, 994 (2d Cir. 1974) (affirming a district court's \"refus[al] to order compliance with all of [the defendant's] very broad demands for discovery,\" because \"[t]he government was not required to disclose its evidence in advance of trial\"); David A. Sklansky & Stephen C. Yeazell, Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa , 94 Geo. L.J. 683, 713-14 (2006) (describing how criminal proceedings often rely on an element of surprise at trial in a way that civil proceedings do not). This has implications for the proper construction of Rule 12(b). Permitting civil \"summary judgment\"-like motions under this Rule would enable an end-run around the calibrated framework for discovery in criminal cases. To overcome such motions, the government might need to reveal its complete case before trial. But this would upset the policy choices reflected in the criminal discovery rules-and provide an advantage to the defense that the Rules' drafters did not intend. Even more fundamentally, authorizing district court judges to resolve dispositive fact-based evidentiary disputes" } ]

[ { "docid": "4714484", "title": "", "text": "of print-outs to establish that an outstanding balance of over double that sum ($31,598.57) exists, and it presented no real rebuttal that payments were made, per the records which Ms. Jenkins laboriously identified at the hearing, for the balance of $16,039.41 alleged to be due. No evidence regarding the computation of interest nor the actual legal services performed on behalf of American Express or attorney’s fees paid by it to counsel was produced at the hearing. The Debtor, as indicated, produced mountains of documentary evidence and copious oral testimony supporting his proposition that he personally did not owe any sum to American Express. The burden was therefore squarely placed upon American Express to prove the validity of all aspects of its claim, just as if it were proving its case as the plaintiff in a lawsuit. See, e.g., In re Jordan, 91 B.R. 673, 676, 682-84 (Bankr.E. D.Pa.1988); In re Celona, 90 B.R. 104, 109 (Bankr.E.D.Pa.1988); and In re Lewis, 80 B.R. 39, 41 (Bankr.E.D.Pa.1987). This was, of course, the same burden which American Express was obliged to bear — and did to the satisfaction of the arbitration panel — at the federal arbitration hearing. However, the very fact that the arbitration panel apparently awarded American Express everything it asked for, when it appears to us that its base claim could be no more than $15,559.16 and the other aspects of its claims were questionable, causes us to place little weight on the decision of the arbitrators. In any event, no judgment was entered, and the award is therefore in no sense conclusive in determining the validity of the claim of American Express in this Court. Compare, e.g., Heiser v. Woodruff, 327 U.S. 726, 732-37, 66 S.Ct. 853, 856-57, 90 L.Ed. 970 (1946); and In re Gulph Woods Corp., 84 B.R. 961, 970 (Bankr.E.D.Pa.1988) (unappealed judgments may be conclusive of the validity of proofs of claims). Our analysis of the liability of the Debtor for the alleged 1982 defalcations of Wynne as to American Express begins with the observation that there is no question that the Debtor did sell the" } ]

[ { "docid": "4616420", "title": "", "text": "are recited in the Complaint. 22. On May 31, 1989, this Court confirmed the Debtor’s Plan of Reorganization. Pursuant to the terms thereof, Berg and the general partners of the Debtor exchanged mutual releases of all claims against the other(s) with respect to the transaction in which the Debtor acquired the Building. B. CONCLUSIONS OF LAW 1. This court has jurisdiction over and is obliged to hear and determine this contested matter, as it involves the allowance or disallowance of a claim. 28 U.S.C. §§ 157(b)(1), (b)(2)(B), 1334(b). 2. Although the Debtor has the burden of producing evidence to rebut the prima facie validity of the Claimant’s proof of claim, if it does so, the ultimate burden of proof or persuasion of the allow-ability of his claim is upon the Claimant. See, e.g., In re Franks, 95 B.R. 346, 350 (Bankr.E.D.Pa.1989); In re Jordan, 91 B.R. 673, 676, 682-84 (Bankr.E.D.Pa.1988); In re Celona, 90 B.R. 104, 109 (Bankr.E.D. Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D. Pa.1989); and In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987). The Debtor did produce evidence which would, if accepted by us, invalidate the Claimant’s entire proof of claim. The burden of proof of the validity of its claim was therefore squarely upon the Claimant. Compare Franks, supra, 95 B.R. at 350. 3. The Claimant has failed to meet its burden of proving, by a preponderance of the evidence, that the Debt- or (as opposed to Berg) contracted with it to pay it a finder’s fee. We acknowledge that a party may be engaged as a “finder” of a buyer or a seller of realty on the basis of an oral contract and that the finder’s only engagement is “that of a middleman who introduces the parties, supplies information to one or both about the other and is required to do little else, ...” Amerofina, Inc. v. U.S. Industries, Inc., 232 Pa.Super. 394, 399, 335 A.2d 448, 451 (1975). See also, e.g., Kinnel v. Mid-Atlantic Mausoleums, Inc. 850 F.2d 958, 961-63 (3d Cir.1988); Sachs v. Continental Oil Co., 454 F.Supp." }, { "docid": "1138880", "title": "", "text": "we later reiterated in In re Celona, Celona v. Equitable National Bank, 90 B.R. 104, 108-09 (Bankr.E.D.Pa.1988), once an objector raises an objection to a claim and provides any evidence tending to dispute a claim, “the claimant will prevail only in the amount that it would be awarded at a trial or hearing, in which the burden of proving its case by a preponderance of evidence [is] upon the claimant.” Lewis, supra, 80 B.R. at 41. We cited The Opinion in this case with approval in Celona, at 109. Any contention that the principles enunciated in The Opinion here were contrary to or reconsidered even in part in Celona is therefore misplaced. As we previously pointed out in The Opinion, at page 679, the facts here were analogous to those of Lewis in numerous relevant respects. The debtor there presented testimony relating only to the mortgage payments she claimed to have made. 80 B.R. at 42. She made no reference to late charges, but merely claimed that she owed a figure which did not include such charges. The mortgagee, while successfully rebutting many of the debtor’s contentions, “made no showing of how its claim for late charges was computed.” Id. at 43. We declined to take judicial notice of “the potentially uncertain means by which such charges are computed,” citing In re Andrews, 78 B.R. 78 (Bankr.E.D.Pa.1987). 80 B.R. at 43. Consequently, all late charges claimed by the mortgagee there were denied. Id. at 43, 44. Practically, the burden of proving a claimant’s right to late charges in its claim could scarcely be allocated otherwise. A debtor could hardly be expected to prove a negative, i.e., to present evidence disproving the unknown reasoning and rationale of a claimant in contending that late charges which the debtor denies are justified are in fact due. The logic of allocation of the burden of proof is that it is necessarily placed on the party who has the most knowledge and best means of proof on a given issue at his disposal. Compare In re New York City Shoes, Inc., 86 B.R. 420, 425" }, { "docid": "6937998", "title": "", "text": "Vitelli, 93 B.R. 889, 897-901 (Bankr.E.D.Pa.1988); and In re Smith, 92 B.R. 127, 132-33 (Bankr.E.D.Pa.1988), rev’d in part on other grounds sub nom. Smith v. Kissell Co., 98 B.R. 708 (E.D.Pa.1989), in the context of objections to proofs of claims. We set forth the relative burdens of proof of the debtor and the claimant in the context of objections to proofs of claim in In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987). There, we emphasized that, if the objector presents evidence tending to disprove the objection, the otherwise-extant presumption that the claim is prima facie allowable vanishes,. Id. at 41. See also Jordan, supra, 91 B.R. at 683-84; and In re Celona, 90 B.R. 104, 108-09 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable Nat’l Bank, 98 B.R. 705 (E.D.Pa.1989). However, the obligee to an exec-utory contract, like a plaintiff in a lawsuit, is accorded no initial presumption of the validity of his claim for compensation under § 365(b)(1) running in his favor, as is a creditor filing a. proof of claim. Therefore, it was incumbent upon the Landlords here to prove every element of their entitlement under § 365(b)(1) by a preponderance of the evidence. This is especially true when it is recalled that the Landlords are obviously the parties with the most knowledge of, and hence best able to prove, their own pecuniary losses due to the Debtor’s conduct. Compare Jordan, supra, 91 B.R. at 684 (loan company has burden of proving its right to late charges, even in the context of a rather vague objection to its proof of claim including such charges). Having established that the burden of proving each element of their entitlements under § 365(b)(1) is squarely upon the Landlords, we may now analyze each element of their demands. Only the bids and the respective rentals due up to March 8, 1989 — as to CH, $36,000 and $22,612.29; as to Columbia, $75,000.00 and $17,117.46; and as to Rouse, $48,000.00 and $16,536.24, respectively — are agreed to by the parties. D. OF THE LANDLORDS’ CLAIM AS TO AMOUNTS DUE IN ADDITION TO RENT THROUGH MARCH" }, { "docid": "6937997", "title": "", "text": "to cure under § 365(b)(1) in the past, nor does this issue appear to be a general subject addressed directly in any reported case. The issue becomes important here because the parties have chosen to present us with an extremely fragmented record, particularly since the relevant lease provisions are omitted as to all but the “black out” clauses. However, we have little doubt that the burden of proof falls squarely upon the obligee to prove all elements of compensation and damages for pecuniary loss to which it is entitled by a preponderance of the evidence. This is the ordinary allocation of the burden of proof upon the party whose stance is that of plaintiff in a contested matter. We have frequently considered claims for attorney’s fees, see, e.g., In re United Nesco Container Corp., 68 B.R. 970, 973—74 (Bankr.E.D.Pa.1987); and In re Nickleberry, 76 B.R. 413 (Bankr.E.D.Pa.1987); late charges, and other penalties, see In re Jordan, 91 B.R. 673 (Bankr.E.D.Pa.1988); and elements of costs, see, e.g., In re Garnett, 99 B.R. 293 (Bankr.E.D.Pa.1989); In re Vitelli, 93 B.R. 889, 897-901 (Bankr.E.D.Pa.1988); and In re Smith, 92 B.R. 127, 132-33 (Bankr.E.D.Pa.1988), rev’d in part on other grounds sub nom. Smith v. Kissell Co., 98 B.R. 708 (E.D.Pa.1989), in the context of objections to proofs of claims. We set forth the relative burdens of proof of the debtor and the claimant in the context of objections to proofs of claim in In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987). There, we emphasized that, if the objector presents evidence tending to disprove the objection, the otherwise-extant presumption that the claim is prima facie allowable vanishes,. Id. at 41. See also Jordan, supra, 91 B.R. at 683-84; and In re Celona, 90 B.R. 104, 108-09 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable Nat’l Bank, 98 B.R. 705 (E.D.Pa.1989). However, the obligee to an exec-utory contract, like a plaintiff in a lawsuit, is accorded no initial presumption of the validity of his claim for compensation under § 365(b)(1) running in his favor, as is a creditor filing a. proof of claim. Therefore, it was incumbent" }, { "docid": "20913863", "title": "", "text": "of the party m whose favor it was unable to apply res judicata, 83 F.Supp. at 500, we find few, if any, equities in favor of Blasdel here. We therefore have little hesitation and find little contrary moral suasion in declining Blasdel’s efforts to assert res judicata or collateral estoppel from the 1990 C.P. Case orders in support of his Claim against the Debtor. We decline to do so on equitable grounds, as well as on firm legal grounds. 2. Blasdel Has Failed to Prove the Validity of Any Claim Against the Debtor by the Requisite Preponderance of the Evidence in This Record. As our observations of the merits of Blasdel’s underlying claims at pages 806-08 supra, portend, we have little difficulty in concluding that, once the judgment(s) in the 1990 C.P. Case is (are) rendered ineffectual to bar the Debtor from defending against the Claim, the Claim cannot be sustained on its merits. The relative burdens of proof of the parties to proof of claim litigation is set forth in In re Allegheny Int'l, Inc., 954 F.2d 167, 173 (3d Cir.1992), as follows: If the objector produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence. See In re WHET, Inc., 33 B.R. 424, 437 (Bankr.D.Mass.1983). The burden of persuasion is always on the claimant. [In re] Holm, 931 F.2d [620,]at 623 [(9th Cir.1991)], (quoting Collier § 502.02, at 502-22); [In re] Windsor Communications [Group, Inc.], 45 B.R. [770,] at 773 [ (Bankr.E.D.Pa.1985) ]. See also In re Jordan, 91 B.R. .673, 683 (Bankr.E.D.Pa.1988) (“once an objector raises an objection to a claim and provides any evidence tending to dispute a claim, ‘the claimant will prevail only in the amount that it would be awarded at a trial or hearing, in which the burden of proving its case by a preponderance of the evidence [is] upon the claimant.’) [In re] Lewis, ... 80 B.R. [39,] at 41 [ (Bankr.E.D.Pa.1987) ].” The testimony of" }, { "docid": "10182529", "title": "", "text": "any witnesses, we disagree with Frankford’s contention that he failed to present any evidence relevant to his objections to its claim, or to Stucki’s claim, for that matter. Rather, since the Trustee knew that both Stucki and Frankford intended to call witnesses which would support their respective claims and positions in the adversary proceedings, and attempt to attack the claims of the other, he properly deferred to each of them to present their own evidence both in support of their claims and in opposition to the other. In determining which of the scenarios set forth in In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987), was manifested by this sequence of presentation of evidence, it is clear that we must focus upon the record made at the hearing as a whole. Frankford (and Stucki) opted to present considerable evidence which they believed supported the validity of their respective claims. The Trustee apparently concluded that the evidence presented by Frankford and Stucki not only failed to succeed in supporting their claims, but tended to undermine them. In retrospect, this conclusion appears to be accurate. However, it is clear that the testimony presented, whether from the mouths of witnesses called by Frankford or by Stucki or by the Trustee, was evidence submitted on the Trustee’s behalf at the hearing. Therefore, clearly, the record on the proofs of claim must be considered to fall within the fifth scenario set forth in Lewis, 80 B.R. at 41. It is only a record in which, taking all of the evidence into account, there is no evidence to support the objector’s position anywhere in the record in which the third scenario, or the “relatively uncommon” situation in which the claimant only presents evidence which supports the claim, arises. 80 B.R. at 41 & n. 1. As we pointed out in In re Jordan, 91 B.R. 673, 683-84 (Bankr.E.D.Pa.1988), it is virtually impossible for the objector to prove a negative, i.e., that a claim has no merit, when the objector is uncertain of the basis of the claim. Any evidence from any source tending to raise a question" }, { "docid": "4613929", "title": "", "text": "Claim, the Creditor bears the ultimate burden of producing a preponderance of evidence to support its claim, not the Debtors the burden of producing a preponderance of evidence that the claim is invalid. At several points in its Brief, the Creditor appears to express a belief that there is some sort of presumption in its favor which carries a substantial impact throughout this litigation and requires us to give greater weight to the documentary evidence which purportedly supports the Creditor’s position, as opposed to the strictly testimonial evidence which supports the position of the Debtors. The principal authorities cited by the Creditor on this point are In re Wells, 51 B.R. 563 (D.Colo.1985); and B.Rule 3001(f). Although cast as an adversary proceeding, the matter is properly classified as a proof-of-claim litigation. The respective burdens of proof of interested parties in such matters is addressed by us with utmost clarity in In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987). As we indicate in the first and third scenarios described therein, it is true that if a debtor, in objecting to a proof of claim, produces little or no evidence to support an objection, the claim stands. This conclusion is entirely consistent with B.Rule 3001(f). However, here, we are presented with the fifth scenario outlined in Lewis, i.e., both parties have appeared and presented evidence at the hearing. In such a case, where the debtor presents some evidence tending to rebut the validity of the proof of claim, “the ‘bubble’ of the presumption is ‘burst’ by the objector’s evidence” and the claimant assumes the same procedural position as “the party plaintiff or movant” which must prove its case “by a preponderance of the evidence.” Id. at 41. See also In re Jordan, 91 B.R. 673, 676 (Bankr.E.D.Pa. 1988). This analysis is nearly consistent with that outlined in Wells, supra, 51 B.R. at 566, although we would conclude, somewhat in contrast to the Wells court, that, if the evidence is equal in probative force, the debtor, not the claimant, should prevail. In the instant case, we do not find the evidence to be" }, { "docid": "10182530", "title": "", "text": "retrospect, this conclusion appears to be accurate. However, it is clear that the testimony presented, whether from the mouths of witnesses called by Frankford or by Stucki or by the Trustee, was evidence submitted on the Trustee’s behalf at the hearing. Therefore, clearly, the record on the proofs of claim must be considered to fall within the fifth scenario set forth in Lewis, 80 B.R. at 41. It is only a record in which, taking all of the evidence into account, there is no evidence to support the objector’s position anywhere in the record in which the third scenario, or the “relatively uncommon” situation in which the claimant only presents evidence which supports the claim, arises. 80 B.R. at 41 & n. 1. As we pointed out in In re Jordan, 91 B.R. 673, 683-84 (Bankr.E.D.Pa.1988), it is virtually impossible for the objector to prove a negative, i.e., that a claim has no merit, when the objector is uncertain of the basis of the claim. Any evidence from any source tending to raise a question concerning the validity of the claim is therefore sufficient to put the claimant to his proof. We therefore conclude that, as to the objections of the Trustee to the proofs of claims, the record, as a whole, clearly contains sufficient evidence to place upon the respective claimants the burden of proving their claims by a preponderance of the evidence. See, e.g., Jordan, supra, 91 B.R. at 683-84; In re Celona, 90 B.R. 104, 109 (Bankr.E.D.Pa.1988); and In re BRI Corp., 88 B.R. 71, 73 (Bankr.E.D.Pa.1988) (TWAR-DOWSKI, CH. J.). 3. STUCKI HAS FAILED TO PROVE THAT THERE WAS A VALID LEVY ON ANY OF THE DEBTOR’S PERSONAL PROPERTY; ITS STATUS IS THEREFORE THAT OF AN UNSECURED CREDITOR. The only facts presented by Stucki in support of its contention that its claim should be accorded secured status are that (1) it filed a writ of execution, and (2) commenced certain discovery in aid of execution, see Finding of Fact 3, page 241 supra, between April 8,1983, and April 12, 1983, because (3) it ceased these proceedings only" }, { "docid": "1138879", "title": "", "text": "doubt that the assumption of the Claimant that it could compute the late charge on the entire balance due was correct. In any event, we believe that our Order of September 2, 1988, indicated quite clearly that we did not intend to reconsider our' holdings, in The Opinion, that the Claimant had the burden of proving, at the hearing of July 5, 1988, that its asserted late charge of $486.06 was accurate and that this burden was not sustained by it at that hearing. Moreover, even were we to do so, our decision on that score would be sustained. Contrary to the claimant’s contentions, the scenario presented here is not the first (no objection filed to proof of claim) nor the third (no evidence presented at the hearing on the Objection) of the five potential scenarios in which objections to proofs of claim come before us recited in Lewis, 80 B.R. at 39, 40. Rather, we were clearly presented with the fifth scenario (both parties presented testimony relative to the objection at the hearing). As we later reiterated in In re Celona, Celona v. Equitable National Bank, 90 B.R. 104, 108-09 (Bankr.E.D.Pa.1988), once an objector raises an objection to a claim and provides any evidence tending to dispute a claim, “the claimant will prevail only in the amount that it would be awarded at a trial or hearing, in which the burden of proving its case by a preponderance of evidence [is] upon the claimant.” Lewis, supra, 80 B.R. at 41. We cited The Opinion in this case with approval in Celona, at 109. Any contention that the principles enunciated in The Opinion here were contrary to or reconsidered even in part in Celona is therefore misplaced. As we previously pointed out in The Opinion, at page 679, the facts here were analogous to those of Lewis in numerous relevant respects. The debtor there presented testimony relating only to the mortgage payments she claimed to have made. 80 B.R. at 42. She made no reference to late charges, but merely claimed that she owed a figure which did not include" }, { "docid": "8935966", "title": "", "text": "15 U.S.C. § 1635(b), and 12 C.F.R. § 226.23(d)(1). See In re Perkins, 106 B.R. 863, 874 (Bankr.E.D.Pa.1989); Brown, supra, 106 B.R. at 862; In re Celona, 90 B.R. 104, 115 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D.Pa.1989); In re Gurst, 79 B.R. 969, 978 (Bankr.E.D.Pa.1987), appeals dismissed, 866 F.2d 1410 (3d Cir. 1988); and 88 B.R. 57 (E.D.Pa.1988); In re Melvin, 75 B.R. 952, 958 (Bankr.E.D.Pa. 1987); and Tucker, supra, 74 B.R. at 932. We recognize that, in the context of a Chapter 13 bankruptcy case, the ramifications of this consequence are in themselves very substantial. Whatever secured claim the creditor had is eliminated, and it is reduced to the status of an unsecured creditor whose payment is likely to be eliminated or significantly diminished in distribution. See, e.g., Brown, supra, 106 B.R. at 862. Second, the Debtor is entitled to statutory damages in light of the Defendant’s violation of the TILA in failing to properly respond to the Debtor’s rescission demand. See e.g., Moore, supra, 117 B.R. at 141; Perkins, supra, 106 B.R. at 874-75; Brown, supra, 106 B.R. at 862; and Melvin, supra, 75 B.R. at 958. The statutory damages are measured by double the amount of the finance charges imposed in the transaction up to $2,000. 15 U.S.C. § 1640(a)(2)(A)(iii). The finance charges in the instant transaction, as stated on the D/S, total $70,849.70. Therefore, the Debtor is clearly entitled to statutory damages in the amount of $2,000. Third, the Debtor is entitled to a claim of recoupment against the Defendant in an amount equivalent to the statutory damages of $2,000 on account of the TILA violations in the original contract. See, e.g., Moore, supra, 117 B.R. at 141-42; Perkins, supra, 106 B.R. at 875; Celona, supra, 90 B.R. at 115; Melvin, supra, 75 B.R. at 959; and Tucker, supra, 74 B.R. at 932. Fourth, the Debtor is relieved of any liability to pay any finance charges to the Defendant in the transaction, per 12 C.F.R. § 226.23(d)(1). See, e.g., Moore, supra, 117 B.R. at 142; Perkins, supra, 106 B.R." }, { "docid": "18896282", "title": "", "text": "of the Debtor’s performance of its services. The final accounting was not submitted to this court by the Accountant until March, 1984, along with a request for compensation of $107,921.85. Individual reconciliation statements were also prepared for each mortgage holder, including the three Claimants, by the Accountant, in which the Debtor’s misappropriations of funds in the amounts of $5,000 (San Antonio), $8,604.38 (Union), and $15,945.16 (Cartaret) were recited. No objections were raised to this accounting at that time, although none of the Claimants affirmatively expressed approval or waiver of disputes of the accuracy of same. C. THE CLAIMANTS FAILED TO MEET THEIR BURDEN OF REBUTTING THE TRUSTEE’S EVIDENCE RELATING TO THE VALIDITY AND AMOUNT OF THEIR CLAIMS Since the Trustee presented, through the Accountant, evidence which supported his Objections for the most part, the burden of proving the validity, amount, and proper classification of their claims was clearly thrust upon the Claimants. See, e.g., In re Railroad Dynamics, Inc., 97 B.R. 239, 243-44 (Bankr.E.D.Pa.1989); In re Franks, 95 B.R. 346, 350 (Bankr.E.D.Pa.1989); In re Jordan, 91 B.R. 673, 682-84 (Bankr.E.D.Pa.1988); In re Celona, 90 B.R. 104, 109 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D.Pa.1989); and In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987). The Claimants are therefore incorrect when they assert that the presumption of the validity of their Claims arising from Bankruptcy Rule 3001(f) remained intact after the completion of the hearing. See Celona, supra, 90 B.R. at 109. Since the Trustee’s credible expert was the only witness at the hearing, no better than the fifth (both parties appear and present evidence), and arguably the fourth (only the objector appears and presents evidence), of the scenarios set forth in Lewis, id. at 41, were presented. The Accountant testified that the Claimants had no basis for asserting administrative or secured status for their claims and reaffirmed that each was entitled to an unsecured claim for the amounts which he calculated that the Debtor had misappropriated from each of them. In the absence of any evidence to the contrary, there is no basis to question" }, { "docid": "18896278", "title": "", "text": "conclude that the Claimants are entitled to unsecured claims in the amounts recited by the Accountant, i.e., San Antonio Savings Association (hereinafter “San Antonio”) — $5,000; Union Central Life Insurance Co. (“Union”) — $8,604.38; and Carter-et Savings & Loan Association (“Carteret”) —$15,945.16 (collectively San Antonio, Union, and Carteret are referred to as “the Claimants”). B. UNDERLYING FACTS A general history of this case and a description of the pervasive pre-petition improprieties by the Debtor are set forth in a previous Opinion of July 24, 1987, granting in part and denying in part the defendants’ motion for summary judgment in a suit by the Trustee against underwriters on fidelity bonds covering certain high-level employees of the Debtor, In re Leedy Mortgage Co., 76 B.R. 440, 441-44, 451-59 (Bankr.E.D.Pa.1987). The case was converted to Chapter 7 on August 10, 1988, with JOHN P. JUDGE, the Chapter 11 Trustee appointed on September 16, 1983 (“the Trustee”), remaining as Chapter 7 Trustee. At a hearing on a motion filed September 29, 1989, by the United States Trustee to remove the Trustee for cause for delaying completion of administration of the estate, an Order was entered, on November 1, 1989, requiring the Trustee to file all appropriate Objections to Proofs of Claim on or before November 22, 1989. Among the filings on November 22, 1989, pursuant to that Order, were Objections to the following Proofs of Claim, all of which had been filed on behalf of the Claimants by the same counsel on August 7, 1985: Claim No. Claimant Amount (Status) Basis 123 San Antonio $ 1,731.28 Share of expenses paid to ■ (Administrative) Accountant 124 San Antonio $15,465.59 (Secured) Shortages in accounts and reimbursement for payments to Accountant to service account Claim No. Claimant Amount (Status) Basis 125 Union $ 3,920.31 Share of expenses paid to (Administrative) Accountant and cost of locating & retrieving loan documentation from Accountant 127 Cartaret $ 1,976.86 Share of expenses paid to (Administrative) Accountant and cost of locating & retrieving loan documentation from Accountant 128 Cartaret $19,914.81 (Secured) Shortages in accounts and reimbursement for payments to Accountant to service" }, { "docid": "6625201", "title": "", "text": "properly act upon within the requisite 20-day period allotted for doing so, 15 U.S.C. § 1635(b), 12 C.F.R. § 226.23(d)(2), are multi-faceted. Firstly, the security interest taken by the creditor must be terminated. 15 U.S.C. § 1635(b), 12 C.F.R. § 226.23(d)(1). See In re Celona, 90 B.R. 104, 115 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D.Pa.1989); In re Gurst, 79 B.R. 969, 978 (Bankr.E.D.Pa.1987), appeals dismissed, C.A. No. 88-2092 (E.D.Pa. August 9, 1988), aff'd, 866 F.2d 1410 (3d Cir.1988); and 88 B.R. 57 (E.D.Pa.1988); In re Melvin, 75 B.R. 952, 958 (Bankr.E.D.Pa.1987); and Tucker, supra, 74 B.R. at 932. In the context of a Chapter 13 bankruptcy case, the ramifications of this consequence are in themselves very substantial. Whatever secured claim the creditor had is eliminated, and it is reduced to the status of an unsecured creditor whose payment is likely to be diminished further in distribution. In light of this result, the Debtor has no cause to press her § 506 claims and same are dismissed as moot. Secondly, the consumer is relieved of any liability to pay any finance charges. See Celona, supra, 90 B.R. at 115, Melvin, supra, 75 B.R. at 958; and Tucker, supra, 74 B.R. at 932. Thus, all of the Debtor’s payments, totalling $1,773.85, may be deducted from the “real” amount financed, $3,330.00, which results, as the Debtor suggests, in a net unsecured claim of $1,566.15. The only other remedy requested by the Debtor here was a statutory penalty of $1,000 arising from Credithrift’s violation of the TILA in failing to respond to her valid rescission of the loan transaction in appropriate fashion and reasonable attorneys’ fees and costs for her counsel. Clearly, these elements of damages are allowable. See Celona, supra, 90 B.R. at 115-16; Gurst, supra, 79 B.R. at 979, 980; Melvin, supra, 75 B.R. at 958, 960; and Tucker, supra, 74 B.R. at 932-33. Other remedies potentially recoverable by the Debtor were not requested and therefore must be deemed waived. See Celona, supra, 90 B.R. at 115; and Tucker, supra, 74 B.R. at 933. The" }, { "docid": "6582416", "title": "", "text": "Nesco Container Corp., 68 B.R. [970] 973-74 (Bankr.E.D.Pa.1987); and In re Nickleberry, 76 B.R. 413 (Bankr.E.D.Pa. 1987); late charges, and other penalties, see In re Jordan, 91 B.R. 673 (Bankr.E. D.Pa.1988); and elements of costs, see, e.g., In re Garnett, 99 B.R. 293 (Bankr. E.D.Pa.1989); In re Vitelli, 93 B.R. 889, 897-901 (Bankr.E.D.Pa.1988); and In re Smith, 92 B.R. 127, 132-33 (Bankr.E.D. Pa.1988); rev’d in part on other grounds sub nom. Smith v. Kissell Co., 98 B.R. 708 (E.D.Pa.1989), in the context of objections to proofs of claims. We set forth the relative burdens of proof of the debtor and the claimant in the context of objections to proofs of claim in In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa. 1987). There, we emphasized that, if the objector presents evidence tending to disprove the objection, the otherwise-extant presumption that the claim is prima fa-cie allowable vanishes. Id. at 41. See also Jordan, supra, 91 B.R. at 683-84; and In re Celona, 90 B.R. 104, 108-09 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable Nat’l Bank, 98 B.R. 705 (E.D.Pa.1989)_ The Debtors, in the record of the prior proceedings, presented evidence which placed the entire amount claimed by MBA in issue. Therefore, the burden of proving its entitlement to each and every charge which is a component of its Proofs of Claims was thrust squarely upon MBA. In the following discussion, we shall, for the sake of brevity in expression, refer to the specific items set forth in the proof of claim by the designation of letters assigned to them by Marilyn during her testimony, which we have reproduced at page 421 supra. Also, we will presume, as does even MBA in making its calculations, that its obligations are undersecured, and that therefore post-petition interest on the claim and reasonable fees, costs, and charges arising post-petition cannot be claimed pursuant to 11 U.S.C. § 506(b). We shall not, at this point, discuss any potential impact of 11 U.S.C. §§ 506(a), (d). Item “a,” the principal amount of $96,-647.58, is not in dispute. Items “b” and “h” refer to the two components of" }, { "docid": "4616419", "title": "", "text": "the non-debtor parties and to delay the filing of the more specific complaint unless and until it (the Claimant) applied for and secured relief from the automatic stay in this bankruptcy case or determined that it wished to pursue its claims against the remaining defendants. 21. The claim stated in the present form of the Complaint regarding the Building transaction, in direct contrast to the present claim of the Claimant, alleges only a violation of the Consultation Fee Agreement. No precise legal theory upon which the Claimant would have a cause of action against the Debtor under that Agreement is alleged in the Complaint, presumably triggering the granting of the Preliminary Objections. The Claimant now bases its claim on, alternatively, a contract of the Debtor to pay it as a result of the meeting of Edward, Berg, and Mullins on March 7, 1984, and pursuant to its alleged status as a third-party beneficiary of the Amended Agreement of Sale and/or the Escrow Agreement between the Berg-controlled entities and the Mullins-controlled entities, neither of which theories are recited in the Complaint. 22. On May 31, 1989, this Court confirmed the Debtor’s Plan of Reorganization. Pursuant to the terms thereof, Berg and the general partners of the Debtor exchanged mutual releases of all claims against the other(s) with respect to the transaction in which the Debtor acquired the Building. B. CONCLUSIONS OF LAW 1. This court has jurisdiction over and is obliged to hear and determine this contested matter, as it involves the allowance or disallowance of a claim. 28 U.S.C. §§ 157(b)(1), (b)(2)(B), 1334(b). 2. Although the Debtor has the burden of producing evidence to rebut the prima facie validity of the Claimant’s proof of claim, if it does so, the ultimate burden of proof or persuasion of the allow-ability of his claim is upon the Claimant. See, e.g., In re Franks, 95 B.R. 346, 350 (Bankr.E.D.Pa.1989); In re Jordan, 91 B.R. 673, 676, 682-84 (Bankr.E.D.Pa.1988); In re Celona, 90 B.R. 104, 109 (Bankr.E.D. Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D. Pa.1989); and In re" }, { "docid": "19084140", "title": "", "text": "B.R. at 192. At the hearing on an objection to a proof of claim the burden of going forward with the evidence is on the objectant. In re Vic Snyder, Inc., 50 B.R. 631, 633 (Bankr.E.D.Pa.1985). However, the proof of claim, standing alone, is not sufficient when the objector comes forward with facts which by probative force are equal to that of the allegations of the claim itself, and in such case the prima facie presumption of validity is defeated, and it continues to be the claimant’s burden to establish the validity and amount of the claim. In re Simmons, 765 F.2d 547, 552 (5th Cir.1985); In re Hinkley, 58 B.R. 339, 348 (Bankr.S.D.Tex.1986); In re Wells, 51 B.R. 563, 566 supra; In re DeLorean Motor Co. Litigation, 59 B.R. 329, 336-37 (Bankr.E.D.Mich.1986). The standard of proof as to a Claimant, whose claim has been properly objected to is by a preponderance of the evidence once the objecting party overcomes the presumption of the validity of a claim by meeting its initial burden of persuasion. In re Tidewater Memorial Hospital, Inc., 106 B.R. 885, 888 (Bankr.E.D.Va.1989); In re Paige, 106 B.R. 346, 349 (Bankr.D.Conn.1989); In re Glenn, 100 B.R. 763, 766 (Bankr.W.D.Pa.1989); In re Celona, 90 B.R. 104, 109 (Bankr.E.D.Pa.1988); In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988); In re Horizon Machine & Engineering Corp., 54 B.R. 669, 670 (Bankr.N.D.Ill.1985); In re Kontaratos, 35 B.R. 135, 139 (Bankr.D.Me.1983), approved, cause remanded, U.S. v. Kontaratos, 36 B.R. 928 (D.Me.1984); In re Central Rubber Products, Inc., 31 B.R. 865, 867 (Bankr.D.Conn.1983); Matter of Anchorage Boat Sales, Inc., 29 B.R. 275, 277 (Bankr.E.D.N.Y.1983). See also, Bankruptcy Rule 9017 which states that the Federal Rules Evidence and Rules 43, 44 and 44.1 of Federal Rules Civil Procedure apply to cases under the Code. Federal Rules Evidence 301 states that a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof or risk of non-persuasion which remains throughout the trial upon" }, { "docid": "18896281", "title": "", "text": "being serviced by it which had been sent to the court house. Under loan agreements with the mortgagees, those funds were to be held in trust by the Debt- or and remitted to the mortgagees. The Trustee filed an Application with this court seeking authority to use the trust funds for payment of the Trustee’s administrative expenses. Several mortgagees objected to that Application. The ultimate resolution was a Stipulation, Order and Joinder (“the Stipulation”) approved by the Bankruptcy Court on or about October 31, 1983, joined by the Claimants, which provided that the Trustee would hire the Accountant, who would reassemble the Debtor’s records, with each claimant to pay its pro rata share of these costs as allowed by the bankruptcy court. The Stipulation also provided that the Accountant would turn over to the mortgage holders their respective loan documents and mortgages, as well as all funds in the Trustee’s possession posted on account of their respective mortgages. The mortgagees expressly reserved their rights to proceed against the debtor or any other parties arising out of the Debtor’s performance of its services. The final accounting was not submitted to this court by the Accountant until March, 1984, along with a request for compensation of $107,921.85. Individual reconciliation statements were also prepared for each mortgage holder, including the three Claimants, by the Accountant, in which the Debtor’s misappropriations of funds in the amounts of $5,000 (San Antonio), $8,604.38 (Union), and $15,945.16 (Cartaret) were recited. No objections were raised to this accounting at that time, although none of the Claimants affirmatively expressed approval or waiver of disputes of the accuracy of same. C. THE CLAIMANTS FAILED TO MEET THEIR BURDEN OF REBUTTING THE TRUSTEE’S EVIDENCE RELATING TO THE VALIDITY AND AMOUNT OF THEIR CLAIMS Since the Trustee presented, through the Accountant, evidence which supported his Objections for the most part, the burden of proving the validity, amount, and proper classification of their claims was clearly thrust upon the Claimants. See, e.g., In re Railroad Dynamics, Inc., 97 B.R. 239, 243-44 (Bankr.E.D.Pa.1989); In re Franks, 95 B.R. 346, 350 (Bankr.E.D.Pa.1989); In re Jordan," }, { "docid": "18896283", "title": "", "text": "91 B.R. 673, 682-84 (Bankr.E.D.Pa.1988); In re Celona, 90 B.R. 104, 109 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D.Pa.1989); and In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987). The Claimants are therefore incorrect when they assert that the presumption of the validity of their Claims arising from Bankruptcy Rule 3001(f) remained intact after the completion of the hearing. See Celona, supra, 90 B.R. at 109. Since the Trustee’s credible expert was the only witness at the hearing, no better than the fifth (both parties appear and present evidence), and arguably the fourth (only the objector appears and presents evidence), of the scenarios set forth in Lewis, id. at 41, were presented. The Accountant testified that the Claimants had no basis for asserting administrative or secured status for their claims and reaffirmed that each was entitled to an unsecured claim for the amounts which he calculated that the Debtor had misappropriated from each of them. In the absence of any evidence to the contrary, there is no basis to question the indisputably competent and independent conclusions of the Accountant. We therefore shall allow the Claimants only amounts consistent with the Accountant’s testimony. D. THE CLAIMS ARE NOT ENTITLED TO ADMINISTRATIVE STATUS BY REASON OF SUBROGATION NOR ON THE GROUND THAT THE CLAIMANTS MADE PAYMENTS TO THE ACCOUNTANT FOR SERVICES WHICH WERE NECESSARY TO PRESERVE THE DEBTOR’S ESTATE The Claimants contend that two types of expenditures should be accorded administrative status: (1) Reimbursement for their pro rata share of the payments for compensation advanced by each of them to the Accountant for assembling the Debtor’s records; and (2) Additional costs incurred by Union and Cartaret to retrieve certain documents from the Accountant. We start from the premises that the focus of 11 U.S.C. § 503(b)(1)(A), which the creditors implicitly invoke as the basis for their contention that certain aspects of their claims are entitled to administrative status, “is upon the necessity of the expenses to the preservation of the debtor’s estate” (all but last emphasis in original), and that § 503(b)(1)(A) must be read “narrowly.” In" }, { "docid": "10182531", "title": "", "text": "concerning the validity of the claim is therefore sufficient to put the claimant to his proof. We therefore conclude that, as to the objections of the Trustee to the proofs of claims, the record, as a whole, clearly contains sufficient evidence to place upon the respective claimants the burden of proving their claims by a preponderance of the evidence. See, e.g., Jordan, supra, 91 B.R. at 683-84; In re Celona, 90 B.R. 104, 109 (Bankr.E.D.Pa.1988); and In re BRI Corp., 88 B.R. 71, 73 (Bankr.E.D.Pa.1988) (TWAR-DOWSKI, CH. J.). 3. STUCKI HAS FAILED TO PROVE THAT THERE WAS A VALID LEVY ON ANY OF THE DEBTOR’S PERSONAL PROPERTY; ITS STATUS IS THEREFORE THAT OF AN UNSECURED CREDITOR. The only facts presented by Stucki in support of its contention that its claim should be accorded secured status are that (1) it filed a writ of execution, and (2) commenced certain discovery in aid of execution, see Finding of Fact 3, page 241 supra, between April 8,1983, and April 12, 1983, because (3) it ceased these proceedings only at the specific request of Judge Broderick. The only other period of time in which it could have proceeded to execute upon its judgment was between March 8, 1984, when Judge Broderick refused to extend the stay after the unsuccessful appeal to the Federal Circuit, and March 16, 1984, when the Debtor filed bankruptcy. There is no evidence that any execution proceedings were effected during the latter period. Stucki accurately cites In re Decker, 27 B.R. 184, 186-86 (Bankr.M.D.Pa.1983), for the principle that, if a creditor effects a valid levy on a debtor’s personalty prior to a bankruptcy filing, then the creditor has created a lien which renders the creditor’s claim secured by the property levied upon. However, the difficulty with the application of that principle to the facts here is that Stucki has not established that a valid levy on any of the Debtor’s personal property was ever effected. Pursuant to B.Rule 7069 and F.R.Civ.P. 69(a), the execution procedures in the local district court in issue here must be undertaken in accordance with the" }, { "docid": "6582415", "title": "", "text": "were so at variance from the underlying Factoring Agreement and Security Agreement of August 3, 1988 (hereinafter referred to as “the Factoring Agreement”), see 99 B.R. at 611-12, that the indemnification provisions of the Factoring Agreement pursuant to which the Debtors’ liability arises were unenforceable against them. Id. at 622. We agree with MBA’s unanswered argument that the undertakings of the parties were sufficiently in accordance with the terms of the Factoring Agreement that they created obligations which were secured by the Deeds of Trust executed by the Debtors. However, we disagree with MBA’s apparent contention that the burden of proof regarding the specifics of its claim, as itemized in its Proofs of Claims, see page 421 supra, falls upon the Debtor. We recently stated as follows in collecting our cases relating to the burden of proof in establishing the validity of charges which are the components of proofs of claims in In re Joshua Slocum, Ltd., 103 B.R. 601, 605-06 (Bankr.E.D.Pa.1989): We have frequently considered claims for attorney’s fees, see, e.g., In re United Nesco Container Corp., 68 B.R. [970] 973-74 (Bankr.E.D.Pa.1987); and In re Nickleberry, 76 B.R. 413 (Bankr.E.D.Pa. 1987); late charges, and other penalties, see In re Jordan, 91 B.R. 673 (Bankr.E. D.Pa.1988); and elements of costs, see, e.g., In re Garnett, 99 B.R. 293 (Bankr. E.D.Pa.1989); In re Vitelli, 93 B.R. 889, 897-901 (Bankr.E.D.Pa.1988); and In re Smith, 92 B.R. 127, 132-33 (Bankr.E.D. Pa.1988); rev’d in part on other grounds sub nom. Smith v. Kissell Co., 98 B.R. 708 (E.D.Pa.1989), in the context of objections to proofs of claims. We set forth the relative burdens of proof of the debtor and the claimant in the context of objections to proofs of claim in In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa. 1987). There, we emphasized that, if the objector presents evidence tending to disprove the objection, the otherwise-extant presumption that the claim is prima fa-cie allowable vanishes. Id. at 41. See also Jordan, supra, 91 B.R. at 683-84; and In re Celona, 90 B.R. 104, 108-09 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable Nat’l Bank, 98" } ]

[ { "docid": "22306413", "title": "", "text": "after the effective date of the Act and within the period of the statute of limitations, or 300 day charge-filing period. But such a violation is not limited to hiring violations per se. A continuously maintained illegal employment policy may be the subject of a valid complaint until a specified number of days after the last occurrence of an instance of that policy. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 76-80, 478 F.2d 979, 986-90 (1973). See also 118 Cong.Rec. 7565 (March 6, 1972). Furthermore, where an illegal policy is so maintained, relief for injuries sustained even before the beginning of the limitations period is appropriate. Accordingly, in the instant case, it must be determined whether the police force maintained a continuous policy which limited opportunities for female participation in the police force. If such a policy were properly charged after the effective date of the Act and within the statutorily required number of days following the last occurrence of an instance of that policy, then a judicially remediable violation of Title VII would be established. Such a policy of exclusion can be construed broadly to include, inter alia, discriminatory hiring, assignment, transfer, promotion and discharge. See Teamsters, 431 U.S. at 347, 97 S.Ct. at 1860. The unlawful segregation of positions, the use of sex-specific employment examinations or quotas, and the like may be considered. Only when the existence of a Title VII violation has been established is it relevant to consider appropriate remedies under the Act. It is here that proof of the failure to hire women for discriminatory reasons is important, for discriminatory hiring can, in some instances, justify an award of retroactive seniority. See Franks, 424 U.S. at 762-70, 96 S.Ct. 1251; Teamsters, 431 U.S. at 347, 97 S.Ct. at 1860. Such seniority can be awarded to a date as early as the effective date of the Act, Teamsters, 431 U.S. at 355, 97 S.Ct. at 1864, and is not limited" } ]

[ { "docid": "5923950", "title": "", "text": "F.3d 164, 168 (8th Cir.1995) (en banc) (\"Ashley's Title VII pay claim is timely because she received allegedly discriminatory paychecks within 300 days prior to the filing of her administrative charge.”) (citations omitted), abrogated on other grounds by Morgan, 536 U.S. at 101, 122 S.Ct. at 2061; Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396, 1400 (9th Cir.1986) (\"As each plaintiff in the instant action filed charges with the EEOC within 180 days of a [wage] payment, we conclude that plaintiffs’ action is not time-barred.”); Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1009 (10th Cir.2002) (\"Bazemore ... has taught a crucial distinction with respect to discriminatory disparities in pay, establishing that a discriminatory salary is not merely a lingering effect of past discrimination — instead it is itself a continually recurring violation.”), cert. denied, 537 U.S. 941, 123 S.Ct. 340, 154 L.Ed.2d 248 (2002); Anderson v. Zubieta, 180 F.3d 329, 335-37 (D.C.Cir.1999) (holding that under Bazemore, the continued application of a discriminatory compensation scheme is itself an actionable violation, and that the plaintiffs could therefore \"be made whole for those paychecks received during” the applicable limitations period). Some circuits relied on the so-called \"continuing violations” doctrine, variously defined, e.g., Calloway, 986 F.2d at 448-49; Cardenas, 269 F.3d at 258, while others expressly rejected that label, e.g., Gandy v. Sullivan County, Tenn., 24 F.3d 861, 864-65 (6th Cir.1994) (EPA claim). Some restricted the damages recoverable to the pay lost as a result of paychecks received within the timely-filing period, e.g., Brinkley-Obu, 36 F.3d at 346, n. 22; Ashley, 66 F.3d at 167-68, while others at least in certain circumstances allowed the plaintiff to recover for the full two-year backpay period specified in 42 U.S.C. § 2000e-5(g)(l), e.g., Goodwin, 275 F.3d at 1011 (misreading Ashley as agreeing with this result), Anderson, 180 F.3d at 335-37. The Second Circuit never addressed the issue in the context of Title VII, but pr e-Morgan decisions under other statutes suggest it would have adopted the majority position. See Connolly v. McCall, 254 F.3d 36, 41 (2d Cir.2001) (relying on Bazemore in holding" }, { "docid": "5923951", "title": "", "text": "the plaintiffs could therefore \"be made whole for those paychecks received during” the applicable limitations period). Some circuits relied on the so-called \"continuing violations” doctrine, variously defined, e.g., Calloway, 986 F.2d at 448-49; Cardenas, 269 F.3d at 258, while others expressly rejected that label, e.g., Gandy v. Sullivan County, Tenn., 24 F.3d 861, 864-65 (6th Cir.1994) (EPA claim). Some restricted the damages recoverable to the pay lost as a result of paychecks received within the timely-filing period, e.g., Brinkley-Obu, 36 F.3d at 346, n. 22; Ashley, 66 F.3d at 167-68, while others at least in certain circumstances allowed the plaintiff to recover for the full two-year backpay period specified in 42 U.S.C. § 2000e-5(g)(l), e.g., Goodwin, 275 F.3d at 1011 (misreading Ashley as agreeing with this result), Anderson, 180 F.3d at 335-37. The Second Circuit never addressed the issue in the context of Title VII, but pr e-Morgan decisions under other statutes suggest it would have adopted the majority position. See Connolly v. McCall, 254 F.3d 36, 41 (2d Cir.2001) (relying on Bazemore in holding in a § 1983 case that \"application of a discrimina-toiy policy” within the limitations period preserves a claim against that policy, even if the policy was instituted outside the limitations period); Pollis v. New School for Social Research, 132 F.3d 115, 119 (2d Cir.1997) (holding that Equal Pay Act claims re-accrue with the receipt of each challenged paycheck); Kim v. Dial Serv. Int’l, Inc., 159 F.3d 1347 (2d Cir.1998) (unpublished table decision) (holding in a § 1981 case that “under Bazemore, each discriminatory paycheck constituted a new violation for which suit could be brought within the statute of limitations period beginning with its occurrence”). . Moreover, the employee is limited to recovering for those paychecks received within the limitations period. This is the necessary consequence of Morgan's holding that the timely-filing requirement “precludes recovery for discrete acts of discrimination or retaliation that occur outside the [filing] period,” Morgan, 536 U.S. at 105, 122 S.Ct. at 2068. Obviously, “the timely filing provision was not meant to serve as a specific limitation ... on damages.” Id. at" }, { "docid": "8945474", "title": "", "text": "jury.”). C. Continuing Violations/Applicability of Statute of Limitations to Claims for Injunctive Relief. Not every plaintiff is deemed to have permanently sacrificed his or her right to obtain injunctive relief merely because the statute of limitations has run as measured from the onset of the objected-to condition or policy. In addressing a Sherman Act claim, the Court stated: We are not dealing with a violation which, if it occurs at all, must occur within some specific and limited time span. Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing and accumulating harm on Hanover. Although Hanover could have sued in 1912 for the injury then being inflicted, it was equally entitled to sue in 1955. Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) (citation omitted). This is particularly true where it is appropriate to describe each new day under an objected-to policy as comprising a new or continuing violation of rights, as in the context of an Eighth Amendment claim for cruel or unusual punishment or a discrimination claim alleging ongoing implementation of a discriminatory wage scheme. See, e.g., Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir.2001) (“[The refusal to provide medical treatment to an inmate] continued for as long as the defendants had the power to do something about his condition .... Every day that they prolonged his agony ... marked a fresh infliction of punishment that caused the statute of limitations to start running anew.”); Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (“Each week’s paycheck that delivers less to a [black person] than to a similarly situated [white person] is a wrong actionable under Title VII....”) (Brennan, J., concurring, joined by all other members of the Court). If it were clear that Montin’s complaint related solely to the creation of the current security policy in 1998, we would have little difficulty rejecting the continuing violations theory. See, e.g., High v. Univ. of Minn., 236 F.3d 909, 909" }, { "docid": "22342958", "title": "", "text": "years of back-pay.”). As we recognized in Morgan, “the fact that Congress expressly limited the amount of recoverable damages elsewhere to a particular time period [i. e., two years] indicates that the [180-day] timely filing provision was not meant to serve as a specific limitation ... [on] the conduct that may be considered.” Ibid. D In tune with the realities of wage discrimination, the Courts of Appeals have overwhelmingly judged as a present violation the payment of wages infected by discrimination: Each paycheck less than the amount payable had the employer adhered to a nondiscriminatory compensation regime, courts have held, constitutes a cognizable harm. See, e. g., Forsyth v. Federation Employment and Guidance Serv., 409 F. 3d 565, 573 (CA2 2005) (“Any paycheck given within the [charge-filing] period . . . would be actionable, even if based on a discriminatory pay scale set up outside of the statutory period.”); Shea v. Rice, 409 F. 3d 448, 452-453 (CADC 2005) (“[An] employer eommit[s] a separate unlawful employment practice each time he pa[ys] one employee less than another for a discriminatory reason” (citing Bazemore, 478 U. S., at 396)); Goodwin, 275 F. 3d, at 1009-1010 (“[Bazemore] has taught a crucial distinction with respect to discriminatory disparities in pay, establishing that a discriminatory salary is not merely a lingering effect of past discrimination — instead it is itself a continually recurring violation.... [E]ach race-based discriminatory salary payment constitutes a fresh violation of Title VII.” (footnote omitted)); Anderson v. Zubieta, 180 F. 3d 329, 335 (CADC 1999) (“The Courts of Appeals have repeatedly reached the . . . conclusion” that pay discrimination is “actionable upon receipt of each paycheck.”); accord Hildebrandt v. Illinois Dept. of Natural Resources, 347 F. 3d 1014, 1025-1029 (CA7 2003); Cardenas v. Massey, 269 F. 3d 251, 257 (CA3 2001); Ashley v. Boyle’s Famous Corned Beef Co., 66 F. 3d 164, 167-168 (CA8 1995) (en banc); Brinkley-Obu v. Hughes Training, Inc., 36 F. 3d 336, 347-349 (CA4 1994); Gibbs v. Pierce Cty. Law Enforcement Support Agcy., 785 F. 2d 1396, 1399-1400 (CA9 1986). Similarly in line with the real-world characteristics" }, { "docid": "7628983", "title": "", "text": "those plaintiffs had already filed formal grievances. See 5 U.S.C. § 7121(d) (barring federal employees from raising discrimination charges through both negotiated grievance and administrative complaint procedures). The district court did not consider this issue, and because it appears to involve factfinding we leave it for that court’s initial consideration on remand. . The plaintiffs also alleged a violation of the Fifth Amendment, an argument not pressed on this appeal. .In conjunction with the Panama Canal Treaty of 1977, Congress amended U.S. immigration laws to make it easier for noncitizen employees of the PCC to become U.S. citizens. The amendments made Panamanian-born Canal employees residing in the Canal Zone, as well as their spouses and children, eligible for \"special immigrant” status, which in turn made them permanent residents and eligible for naturalization. See 8 U.S.C. § 1101(a)(27)(E)-(G). Eleven of the plaintiffs became U.S. citizens pursuant to this legislation. Pis. Br. at 10. . See Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.1995) (en banc); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345-49 (4th Cir.1994) (\"Our cases demonstrate ... that in a compensation discrimination case, the issuance of each diminished paycheck constitutes a discriminatory act.’’); Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796-800 (11th Cir.1992); EEOC v. Penton Indus. Publ’g Co., 851 F.2d 835, 838 (6th Cir.1988) (recognizing that \"where an employer continues to presently impose disparate work assignment or pay rates between similarly situated employee groups\" a continuing violation exists); Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396, 1399 (9th Cir.1986) (\"The policy of paying lower wages ... on each payday constitutes a 'continuing violation.’ \") (internal quotation omitted); see also Miller v. Beneficial Management Corp., 977 F.2d 834, 843-44 (3d Cir.1992) (applying continuing violations doctrine to unequal pay claim under Equal Pay Act); Satz v. ITT Fin. Corp., 619 F.2d 738, 743 (8th Cir.1980) (\"The practice of paying discriminatorily unequal pay occurs not only when an employer sets pay levels, but as long as the discriminatory differential continues.”). But cf. Hendrix v. City of Yazoo, 911 F.2d" }, { "docid": "15385240", "title": "", "text": "be of such Doric simplicity as to be somewhat rare in this day of complex business enterprise.” Id. at 790. Just so here: the Court has left a similar narrow channel for Title VII plaintiffs who wish to complain that their paychecks, in compensation for work they have presently performed and completed in pay periods within the limitations period, are discrimi-natorily low because of an earlier act that occurred outside the limitations period. Each paycheck is the kind of discrete act to which the Court referred in National Railroad Passenger Corp.; thus, checks corresponding to pay periods before the 300-day limit are time-barred, but those within it may form the basis of a claim. Applying this theory to Reese’s case, we conclude that his claims for pay within the 300-day period are not time-barred, because each check that ICS paid Reese was potentially a fresh act of discrimination. This conclusion is consistent with similar results our colleagues in numerous other circuits have reached. See Anderson v. Zubieta, 180 F.3d 329, 335-37 (D.C.Cir.1999); Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir.1997); Cardenas, supra (Third Circuit); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345-51 (4th Cir.1994); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.1995) (en banc); Goodwin v. General Motors Corp., 275 F.3d 1005, 1011 (10th Cir.), cert. denied, 537 U.S. 941, 123 S.Ct. 340, 154 L.Ed.2d 248 (2002). Reese has shown (for purposes of summary judgment) that ICS gave six-month raises only to similarly-situated white employees, not to him, and that ICS’s conduct adversely affected every paycheck Reese has since received. We conclude that Bazemore compels the conclusion that each paycheck constituted a fresh act of discrimination, and thus that his suit is not untimely solely because the initial act of discrimination occurred when it did. We naturally express no opinion on any other aspect of the case, including the question whether the white employees who did receive the six-month raise are still employed with the company, and if not, whether that affects his claim on the merits. Ill For" }, { "docid": "8799490", "title": "", "text": "enforcement of Resolution 91-87 was a “continuing violation” and that, as a result, the limitations period did not start to run until the County stopped enforcing Resolution 91-87 on June 1, 1992. See Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968) (finding action not time-barred due to “a continuing violation ... which inflicted continuing and accumulating harm”); Dixon, 928 F.2d at 215-18 (discussing application of the continuing violation doctrine in employment discrimination cases). In order to determine whether or not there was a continuing violation for statute of limitations purposes, we must evaluate each of Kuhnle’s constitutional claims separately. Turning first to Kuhnle’s takings claim, we note as an initial matter that this claim may be unripe for adjudication because Kuhnle has not filed an inverse condemnation proceeding in state court. See Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194-97, 105 S.Ct. 3108, 3120-22, 87 L.Ed.2d 126 (1985). It is unclear whether or not an adequate inverse condem nation proceeding exists under Ohio law. Compare Kruse v. Village of Chagrin Falls, Ohio, 74 F.3d 694, 700 (6th Cir.), cert. denied, — U.S. -, 117 S.Ct. 71, 136 L.Ed.2d 31 (1996), with Silver v. Franklin Township, Bd. of Zoning Appeals, 966 F.2d 1031, 1035 (6th Cir.1992). We need not resolve this issue, however, because even if Kuhnle’s takings claim is ripe for review, it is barred by the statute of limitations. If Resolution 91-87 did, in fact, “take” any property interests belonging to Kuhnle, that taking occurred when the resolution was enacted. “In the takings context, the basis of a facial challenge is that the very enactment of the statute has reduced the value of the property or has effected a transfer of a property interest. This is a single harm, measurable and compensable when the statute is passed.” Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.1993); accord National Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1163-66 (4th Cir.1991). Kuhnle’s substantive Due Process claim" }, { "docid": "3607047", "title": "", "text": "this title shall be forever barred unless commenced within four years after the cause of action accrued. 15 U.S.C. § 15b. The primary question in this appeal is when the appellants’ cause of action “accrued.” We assume for purposes of this issue, as the district court did, that appellants’ complaints state a valid cause of action. It follows, then, that appellants could have raised their antitrust claim as soon as the allegedly unlawful agreements were executed and they suffered harm therefrom. But this does not mean their cause of action necessarily “accrued” only at that time. In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968), the Supreme Court held that although an unlawful lease-only policy first affected the plaintiff in 1912, a suit instituted in 1955 was not barred by Pennsylvania’s six year statute of limitations, since the lease-only policy was “conduct which constituted a continuing violation of the Sherman Act . .. [and] inflicted continuing and accumulating harm on Hanover.” Id. The “continuing violation” exception to the rule that the action accrues at the time the initial violation first injures the plaintiff was further delineated by the Court in Zenith Radio Corp. v. Hazeltine, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77, which stated: [i]n the context of a conspiracy to violate the anti-trust laws, ... each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. Id. at 338, 91 S.Ct. at 806. Under Zenith and Hanover Shoe, then, any act within the limitation period that effectuates an antitrust injury pursuant to the conspiracy [or in this case the agreement] gives rise to an action for damages. For their action to survive, plaintiff-appellants had to show an “overt act” pursuant to the original tying arrangement by the appellees within the limitation period which caused them an antitrust" }, { "docid": "21037205", "title": "", "text": "504, 66 L.Ed.2d 431 (1980). Moreover, we agree with the district court that any claim regarding union membership or the collective bargaining agreement should have been submitted to an arbitrator or to the NLRB. See Construction Drivers Local 682 v. Bussen Quarries, Inc., 849 F.2d 1123, 1125 (8th Cir.1988). These claims are therefore out of the case. B. On the other hand, the district court erred in dismissing as time-barred Ashley’s claim that gender discrimination tainted her rate of pay. When an employer is accused of an ongoing practice that began prior to the statute of limitations period, the claim may nonetheless be timely under the “continuing violation” doctrine. See Hukka-nen v. International Union of Operating Eng’rs Local 101, 3 F.3d 281, 285 (8th Cir.1993). The employee may challenge ongoing discriminatory acts even if similar illegal acts could have been challenged earlier and are thus time-barred. “[T]he critical question is whether a present violation exists.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (emphasis in original). Applying this test, it is well-settled that “[e]ach week’s paycheck that delivers less to a [woman] than to a similarly situated [man] is a wrong actionable under Title VII.” Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986). Thus, Ashley’s Title VII pay claim is timely because she received allegedly discriminatory paychecks within 300 days prior to the filing of her administrative charge. See Satz v. ITT Fin. Corp., 619 F.2d 738 (8th Cir.1980). Relief back to the beginning of the limitations period strikes a reasonable balance between permitting redress of an ongoing wrong and imposing liability for conduct long past. See Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 & n. 15, 88 S.Ct. 2224, 2236 & n. 15, 20 L.Ed.2d 1231 (1968). Ashley’s Equal Pay Act claim is timely for the same reason. Therefore, if Ashley proves that Boyle’s violated the Equal Pay Act, she may recover for unequal paychecks received within two years of commencing the action, or within three years if the" }, { "docid": "23560574", "title": "", "text": "AGO factors, thus, weigh in favor of granting the trucking companies standing to assert a claim for § 4 damages. We,- therefore, conclude that all plaintiffs, directly injured by B & LE’s conspiratorial activity with the other railroads, have standing to assert § 4 claims for damages. C. Limitation of Actions B & LE claims that the federal actions filed against it are time-barred by the four-year Sherman Act statute of limitations. The Ohio actions suffer the same fate, according to B & LE, by application of the doctrine of laches. These issues present mixed questions of law and fact which implicate our plenary review of the questions of law and the clearly erroneous standard to .the district court’s factual findings. 1. ' Federal Law Pointing out that the conspiracy began in the 1950’s and that some plaintiffs had knowledge of the conspiracy as early as 1972, B & LE argues that those plaintiffs’ claims were barred by the 4-year statute of limitations. B & LE also argues that the statute óf limitations permits recovery only of damages resulting from “injury-causing overt acts” that occurred within the. limitations period; therefore, it would follow that the district court misapplied the statute of limitations by not requiring the jury to link damages to specific overt acts. The Supreme Court has considered and rejected the argument that, in the context of a defendant’s’ continuing violation of the Sherman Act, the statute of limitations runs from the violation’s earliest impact on a plaintiff. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968). In Hanover Shoe, the defendant had initiated an-illegal policy in 1912, some forty-three years before the plaintiff sued in 1955. The Court allowed damages within the limitations period, opining: We are not dealing with a violation which,if it occurs at all, must occur’within some specific and limited time span. Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing and accumulating harm.... Although [the plaintiff] could have sued" }, { "docid": "21107667", "title": "", "text": "the limitations period began but continued into it, see Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.1995) (en banc), and that evidence of events “occurring outside the limitations period may ... be admissible ... when the incidents are part of a continuing violation,” Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 572 (8th Cir.1997). A violation is continuing if it consists of ‘“an ongoing pattern or practice of discrimination,’ ” rather than an amalgamation of discrete, isolated instances. Rorie v. United Parcel Service, Inc. 151 F.3d 757, 761 (8th Cir.1998), quoting Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1303 (8th Cir.1997), cert. denied, — U.S.—, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998) (emphasis omitted). We have held, moreover, that “[e]ven if a plaintiff is unable to show a continuing violation, ... instances of harassment occurring outside the [limitations] period may be admissible to provide relevant background to later discriminatory acts.” Rorie, 151 F.3d at 761. Damages, however, may be recovered only with respect to events that occurred within the limitations period. Ashley, 66 F.3d at 168 (“[rjelief back to the beginning of the limitations period strikes a reasonable balance between permitting redress of an ongoing wrong and imposing liability for conduct long past”); see also Kimzey, 107 F.3d at 572-73. Various of the plaintiffs contend that the trial court misapplied the principles applicable to continuing-violation cases in several ways. We turn first to the trial court’s exclusion of evidence about any events that occurred before January 1, 1989 (more than four years before the limitations period began). The trial court’s order excluding that evidence explicitly declined to do so with respect to Ms. Wedow, Ms. Morgan, and Ms. Taylor, and thus on appeal we consider this issue only with respect to Ms. Kline. See Fed.R.App.P. 10(2), Fed. R.App.P. 28(e). Ms. Kline asserts that the trial court’s cutoff date of January 1, 1989, for evidence on her disparate treatment and hostile work environment claims was arbitrary and that for those claims the trial court should have admitted all evidence concerning her work since she was" }, { "docid": "5923948", "title": "", "text": "347 F.3d 1014, 1028 (7th Cir.2003) (\"Using Morgan as our guide ... we must conclude that each of Dr. Hildebrandt’s paychecks that included discriminatory pay was a discrete discriminatory act, not subject to the continuing violation doctrine. Therefore, Dr. Hildebrandt may only recover for the discriminatory pay received within the statute of limitations period.”) (footnote omitted); cf. Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir.1997) (concluding in a -pre-Morgan Equal Pay Act case that \"a claim of discriminatory pay is fundamentally unlike other claims of ongoing discriminatory treatment because it involves a series of discrete, individual wrongs rather than a single and indivisible course of wrongful action”). . We note that neither party has argued that equitable considerations require deviation from straight-forward application of the 180-day filing period. See Morgan, 536 U.S. at 121-22, 122 S.Ct. at 2076-77 (reaffirming that the timely-filing requirement is subject to waiver, estoppel, and equitable tolling, and holding that defendants may avail themselves of the defense of laches). We therefore have no occasion to consider, for example, the timing and extent of Ledbetter's awareness of the disparity between her salary and those of her co-workers. . This included at least the Third, Fourth, Sixth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits. See Calloway v. Partners National Health Plans, 986 F.2d 446 (11th Cir.1993) (relying on Bazemore in holding that a plaintiff could challenge her initial wage rate as unlawful, even though it had been established outside the limitations period, because she continued to receive paychecks within the limitations period); Cardenas v. Massey, 269 F.3d 251, 258 (3d Cir.2001) (\"in a Title VII case claiming discriminatoiy pay, the receipt of each paycheck is a continuing violation”); Brinkley-Ohu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir.1994) (\"[I]n a compensation discrimination case, the issuance of each diminished paycheck constitutes a discriminatory act”); Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir.1982) (\"[T]he discrimination [against the plaintiff] was continuing in nature. [She] suffered a denial of equal pay with every check she received.”); Ashley v. Boyle’s Famous Corned Beef Co., 66" }, { "docid": "12599696", "title": "", "text": "U.S. 385, 395, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (Brennan, J., concurring in part, joined by all other members of the Court) (“Each week’s paycheck that delivers less to a [disadvantaged class member] than to a similarly situated [favored class member] is a wrong actionable under Title VII .... ”); Bartelt v. Berlitz Sch. of Languages of Am., Inc., 698 F.2d 1003, 1007 (9th Cir.1983) (describing 29 U.S.C. § 255 as rendering employer who commits willful violation under EPA liable for back pay for up to three years before suit is filed); Rural Fire Prot. Co. v. Hepp, 366 F.2d 355, 361-62 (9th Cir.1966) (finding that cause of action accrued at end of each pay period when minimum and maximum wage provisions of 29 U.S.C. §§ 206, 207 violated). Therefore, although the EPA violations may have been continuing, the continuing violation doctrine does not permit O’Donnell to recover back pay for discriminatory pay periods outside the applicable statute of limitations period. See Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118-19 (2d Cir.1997); Knight v. Columbus, 19 F.3d 579, 582 (11th Cir.1994); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir.1995) (en banc), abrogation on other grounds recognized by Madison v. IBP, Inc., 330 F.3d 1051, 1056-57 (8th Cir.2003); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 351 (4th Cir. 1994); Gandy v. Sullivan County, 24 F.3d 861, 865 (6th Cir.1994); E.E.O.C. v. McCarthy, 768 F.2d 1, 3 n. 4 (1st Cir.1985). We therefore reverse the district court’s dismissal of O’Donnell’s EPA claims and remand for further proceedings to determine whether the defendants violated the EPA and, if so, to determine the applicable statute of limitations and the period and amount of back pay recoverable. See 29 U.S.C. § 255(a). The parties shall each bear their own costs on appeal. AFFIRMED IN PART, REVERSED AND REMANDED IN PART." }, { "docid": "23560575", "title": "", "text": "only of damages resulting from “injury-causing overt acts” that occurred within the. limitations period; therefore, it would follow that the district court misapplied the statute of limitations by not requiring the jury to link damages to specific overt acts. The Supreme Court has considered and rejected the argument that, in the context of a defendant’s’ continuing violation of the Sherman Act, the statute of limitations runs from the violation’s earliest impact on a plaintiff. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236 n. 15, 20 L.Ed.2d 1231 (1968). In Hanover Shoe, the defendant had initiated an-illegal policy in 1912, some forty-three years before the plaintiff sued in 1955. The Court allowed damages within the limitations period, opining: We are not dealing with a violation which,if it occurs at all, must occur’within some specific and limited time span. Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing and accumulating harm.... Although [the plaintiff] could have sued in 1912 for the injury then being inflicted, it was equally entitled to sue in 1955. Id. (citation omitted). To the extent that the steel companies’ continued shipment of ore on Lower Lake Erie resembles the continued rents paid to the defendants in Hanover Shoe, the cases are indistinguishable. The main thrust of B & LE’s limitations argument has not been to distinguish Hanover Shoe, to which it refers briefly only in its reply brief. Rather, B & LE first argues that another Supreme Court decision, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-42, 91 S.Ct. 795, 806-08, 28 L.Ed.2d 77 (1971), applies. B & LE contends that Zenith generally requires proof that a newly accruing claim be based on an injurious act within the limitations period, then further argues that Zenith allows recovery of only those damages attributable to overt acts occurring within the limitations period. In Zenith, the Court articulated an exception to the general rule that a cause of action accrues each time an act causes an injury. The" }, { "docid": "22248623", "title": "", "text": "District Court’s opinion is allowed to stand, it “would frustrate enforcement of Title VII by improperly insulating current discriminatory conduct from challenge under the statute.” Id. at 1. In its opinion on Cardenas’ request for reargument, the District Court rejected Cardenas’ argument that it had overlooked the Miller decision. The court first noted that Cardenas had not cited Miller and then held that Miller was not controlling because it analyzed the statute of limitations under the Equal Pay Act whereas Cardenas sued under Title VII. However, the Supreme Court’s opinion in Bazemore concerns a Title VII claim. Moreover, application of the continuing violations doctrine is not dependent on which statute gives rise to the plaintiffs claim. See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345-51 (4th Cir.1994) (applying continuing violation theory to both Title VII and EPA disparate pay claims). Although Miller may have been brought under a different statute, its holding is still applicable here. Cf. Miller, 977 F.2d at 843 (relying in part on Hall v. Ledex, Inc., 669 F.2d 397 (6th Cir.1982) (Title VII and EPA) and Satz v. ITT Fin. Corp., 619 F.2d 738 (8th Cir.1990) (Title VII)). Finally, there are numerous cases in other circuits that have followed the Bazemore decision to hold that in a Title VII case claiming discriminatory pay, the receipt of each paycheck is a continuing violation. See, e.g., Anderson v. Zubieta, 180 F.3d 329, 335-37 (D.C.Cir.1999); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.1995) (en banc); Brinkley-Obu, 36 F.3d at 345-51. The defendants seek to uphold the summary judgment on the disparate pay claim on the ground that the undisputed facts show that any difference in pay between the employees in the ISD unit who also had the title of project manager “was a result of the varying degrees of seniority, experience, education and difference in job responsibilities.” Br. of Appellees at 19. It may, indeed, be true that whatever differences existed were the result of factors other than ethnicity and that the failure to promote Cardenas to a level that he claims would" }, { "docid": "5923949", "title": "", "text": "for example, the timing and extent of Ledbetter's awareness of the disparity between her salary and those of her co-workers. . This included at least the Third, Fourth, Sixth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits. See Calloway v. Partners National Health Plans, 986 F.2d 446 (11th Cir.1993) (relying on Bazemore in holding that a plaintiff could challenge her initial wage rate as unlawful, even though it had been established outside the limitations period, because she continued to receive paychecks within the limitations period); Cardenas v. Massey, 269 F.3d 251, 258 (3d Cir.2001) (\"in a Title VII case claiming discriminatoiy pay, the receipt of each paycheck is a continuing violation”); Brinkley-Ohu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir.1994) (\"[I]n a compensation discrimination case, the issuance of each diminished paycheck constitutes a discriminatory act”); Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir.1982) (\"[T]he discrimination [against the plaintiff] was continuing in nature. [She] suffered a denial of equal pay with every check she received.”); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir.1995) (en banc) (\"Ashley's Title VII pay claim is timely because she received allegedly discriminatory paychecks within 300 days prior to the filing of her administrative charge.”) (citations omitted), abrogated on other grounds by Morgan, 536 U.S. at 101, 122 S.Ct. at 2061; Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396, 1400 (9th Cir.1986) (\"As each plaintiff in the instant action filed charges with the EEOC within 180 days of a [wage] payment, we conclude that plaintiffs’ action is not time-barred.”); Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1009 (10th Cir.2002) (\"Bazemore ... has taught a crucial distinction with respect to discriminatory disparities in pay, establishing that a discriminatory salary is not merely a lingering effect of past discrimination — instead it is itself a continually recurring violation.”), cert. denied, 537 U.S. 941, 123 S.Ct. 340, 154 L.Ed.2d 248 (2002); Anderson v. Zubieta, 180 F.3d 329, 335-37 (D.C.Cir.1999) (holding that under Bazemore, the continued application of a discriminatory compensation scheme is itself an actionable violation, and that" }, { "docid": "21037206", "title": "", "text": "original). Applying this test, it is well-settled that “[e]ach week’s paycheck that delivers less to a [woman] than to a similarly situated [man] is a wrong actionable under Title VII.” Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986). Thus, Ashley’s Title VII pay claim is timely because she received allegedly discriminatory paychecks within 300 days prior to the filing of her administrative charge. See Satz v. ITT Fin. Corp., 619 F.2d 738 (8th Cir.1980). Relief back to the beginning of the limitations period strikes a reasonable balance between permitting redress of an ongoing wrong and imposing liability for conduct long past. See Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 502 & n. 15, 88 S.Ct. 2224, 2236 & n. 15, 20 L.Ed.2d 1231 (1968). Ashley’s Equal Pay Act claim is timely for the same reason. Therefore, if Ashley proves that Boyle’s violated the Equal Pay Act, she may recover for unequal paychecks received within two years of commencing the action, or within three years if the violations were willful. See 29 U.S.C. §§ 206(d)(1), 255(a); Gandy v. Sullivan County, 24 F.3d 861, 865 (6th Cir.1994). C. Ashley’s claims relating to her lay-off in June 1992 and Boyle’s subsequent failure to recall or rehire her are also not time-barred. Boyle’s argues that her administrative charge was untimely because the challenged employment actions flowed from Boyle’s initial decision to assign Ashley to a non-union job. We disagree. With the union’s acquiescence, Boyle’s treated the second floor as a separate operation to which the collective bargaining agreement did not apply. In this manner, Boyle’s reserved to itself the unilateral right to lay off, recall, and rehire second floor employees. Ashley claims that Boyle’s made decisions between June and November 1992 that were the product of gender discrimination. Those claims are obviously not time-barred. Boyle’s attempt to blame its unilateral decisions regarding Ashley on a collective bargaining agreement that covered other employees is without merit. III. Laches. The district court applied the equitable doctrine of laches to bar all of Ashley’s claims because she unreasonably" }, { "docid": "21107666", "title": "", "text": "in light of those exclusions, the summary judgment rulings against Ms. Wedow and Ms. Morgan, and the order vacating the award of punitive damages. The city cross-appeals, claiming that there was insufficient evidence to support the judgment in favor of Ms. Taylor. We affirm the trial court with respect to the plaintiffs’ appeal but reverse the judgment in favor of Ms. Taylor’s disparate treatment claim. We remand the case for the entry of appropriate orders. I. Employment discrimination claims of the kind involved here are barred if a plaintiff fails to file a timely charge with the appropriate federal or state administrative agency. Evidence of discrimination is ordinarily admissible only with respect to acts within the statutory limitations period preceding the filing of the charges. The plaintiffs in this case, however, sought to admit evidence of events predating the limitations period, maintaining that they could do so because they were complaining of continuing violations. We have long recognized that a claim may be timely if it is based on an ongoing violation that began before the limitations period began but continued into it, see Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.1995) (en banc), and that evidence of events “occurring outside the limitations period may ... be admissible ... when the incidents are part of a continuing violation,” Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 572 (8th Cir.1997). A violation is continuing if it consists of ‘“an ongoing pattern or practice of discrimination,’ ” rather than an amalgamation of discrete, isolated instances. Rorie v. United Parcel Service, Inc. 151 F.3d 757, 761 (8th Cir.1998), quoting Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1303 (8th Cir.1997), cert. denied, — U.S.—, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998) (emphasis omitted). We have held, moreover, that “[e]ven if a plaintiff is unable to show a continuing violation, ... instances of harassment occurring outside the [limitations] period may be admissible to provide relevant background to later discriminatory acts.” Rorie, 151 F.3d at 761. Damages, however, may be recovered only with respect to events that occurred within the" }, { "docid": "7611841", "title": "", "text": "of wrongful action” (Pollis v. New School for Soc. Research, 132 F.3d 115, 119 (2d Cir.1997); accord, Cardenas v. Massey, 269 F.3d 251, 257 (3d Cir. 2001); Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir.1996); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir.1995) (en banc); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 347 (4th Cir.1994); Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448-49 (11th Cir.1993)). Today we join those circuits and the Supreme Court in recognizing that each race-based discriminatory salary payment constitutes a fresh violation of Title VII. General Motors argues that Bazemore is inapplicable here, but that argument is unpersuasive. Simply put, none of the cases cited by General Motors in any way supports the premise that Bazemore is irrelevant to Goodwin’s pay discrimination claim. Thus General Motors points to Carter v. West Publ’g Co., 225 F.3d 1258 (11th Cir. 2000), but Carter did not involve a claim of pay discrimination. Instead it dealt with the lingering effects — the nonreceipt of dividends — of an employer’s time-barred discriminatory act of failing to offer stock options to female employees (id. at 1265). As such, that claim fell under the Evans line of cases instead of Bazemore. General Motors also urges us to adopt the different approach taken in Dasgupta v. University of Wisconsin, 121 F.3d 1138 (7th Cir.1997). Dasgupta dealt with a complaint of national origin discrimination in which the plaintiff alleged several manifestations of discrimination: differences in pay and promotion as well as the employer’s failure to protect him from harassment by other employees (id. at 1139). Each instance of harassment and failure to promote occurred years before plaintiff filed his claim, but he argued that those actions resulted in a continuing violation via a lower salary (id. at 1139-40). In finding the plaintiffs claim barred by the filing period requirement, the Seventh Circuit analyzed the claim under the lingering effects framework and held that the plaintiffs lower salary did not itself create an independent cause of action (id. at 1140). Describing the line between Das-gupta and" }, { "docid": "14445120", "title": "", "text": "(4) the period for all harm may be postponed until there is a manifestation of compensable harm. Developments in the Law, Statutes of Limitations, 63 Harv.L.Rev. 1177, 1205 (1950) (emphasis added). The Sixth Circuit, like most other courts, classifies Equal Pay Act claims in the second category: each check paid at the discriminatory rate is a denial of equal pay and a separate violation of the Act. A separate cause of action accrues for each violation and must be filed within the three-year time period beginning with its occurrence. Although “continuing in nature,” invocation of the continuing violations doctrine is not necessary since plaintiffs like Gandy are not attempting to file an otherwise untimely action and are not attempting collection of damages for conduct outside the limitations period. Analyzing continuing wrongs in this manner is not unique to the employment or equal pay context. In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), the Su preme Court discussed the concept in the anti-trust context. Hanover filed an antitrust action in 1955 alleging that the defendant’s restrictive system of distributing machinery violated the antitrust laws. The defendant raised a statute of limitations defense, asserting that it had applied the challenged policy to Hanover since 1912. The Supreme Court ruled that Hanover could sue but that it could recover only those damages suffered within the limitations period, explaining that a new cause of action accrued each time the defendant violated the law. The Court reasoned that the defendant should not be allowed to continue its illegal conduct forever because it had not been previously challenged and that plaintiff should not be able to collect for forty years of damages. Similarly, the defendant in this ease violated the Equal Pay Act for almost ten years before Gandy sued. The defendant should not be allowed to continue to discriminate because it has been able to do so for ten years, and the plaintiff should not be allowed to collect for damages outside the three-year limitations period. Application of the continuing violations doctrine was discussed" } ]

[ { "docid": "20795454", "title": "", "text": "So.2d 331 (Fla.1965); Baugus v. State, 141 So.2d 264 (Fla.1962). For the reasons stated the Court finds that it has jurisdiction in this cause. CONSTITUTIONAL QUESTIONS The principal constitutional issue for determination is, of course, whether one who is arrested and held for trial upon an information filed by the state attorney is entitled to a hearing before a judicial officer on the question of probable cause. The Court is faced with a unique factual situation which does not appear to be controlled by the plethora of cases cited by counsel. Defendants rely on Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1914) in which the Supreme Court held that an Oregon defendant who was accused by sworn complaint before a committing magistrate had no right to an examination as a condition precedent to the filing of an information by the district attorney. In Woon the Court was concerned with the validity of the information rather than the pre-trial detention. Furthermore, that case did not consider a procedure resulting in lengthy detention after arrest where neither a sworn complaint nor an information had been filed. It is significant that the Woon case relied on Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884) holding that a grand jury indictment was not a prerequisite to a felony prosecution, and stating: * * * we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.” (Emphasis added.) 110 U.S. at 537, 4 S.Ct. at 122. Numerous opinions have been cited in which this circuit has held there is no due process right to a preliminary hearing. The issue in each of those cases however, was the validity of the trial as affected by the absence of a preliminary" } ]

[ { "docid": "22574486", "title": "", "text": "Plan. On December 6, 1972, the Florida Supreme Court issued its Amended Rules of Criminal Procedure. These rules, which took effect February 1, 1973, provide for a committing magistrate system. The differences between the Pur-dy Plan and these Amended Rules provided the focus for the District Court’s findings pursuant to our order, which were filed on March 12,1973. In light of the aforementioned intervening developments, we must resolve the following questions: (1) Should the District Court have abstained from ruling on the constitutionality of Dade County’s lack of preliminary hearings in cases proceeded upon by information filed by the state attorney? (2) Do arrestees prosecuted upon informations certifying probable cause for arrest by the state attorney have a constitutional right to preliminary hearings before a magistrate? and (3) In what respects, if any, are the Amended Rules constitutionally deficient in their provisions for preliminary hearings? I. Background Persons arrested for felonies and most misdemeanors in Dade County, Florida are routinely brought to the Metropolitan Dade County Jail. Aside from capital cases, which must be tried on indictment by a grand jury, all other criminal cases in Florida may be commenced by “information filed by the prosecuting attorney under oath.” Florida Statutes § 904.01. Although preliminary hearings on probable cause for arrest with or without warrant are mandated by statute, the Florida judiciary has consistently held that such hearings are not required where the state prosecutes by filing an information certifying probable cause for arrest. Though the Florida Supreme Court has not been insensitive to the constitutional ramifications of incarceration without any preliminary probable cause hearing, it has declined to hold these practices unconstitutional or to fashion relief for arrestees held upon informations. Amended Rule 3.-131, 33 F.S.A., which provides for a right to a preliminary, hearing on any felony charge “unless charged in an information or indictment,” (Emphasis added), preserves the previous practice of permitting the state attorney’s certification to obviate the need for a preliminary hearing. Criminal actions in Dade County, therefore, often proceed upon information sworn to by the state attorney either before or after arrest without any" }, { "docid": "23001154", "title": "", "text": "(1967). More than half a century ago, the Supreme Court declared, “[t]o provide the necessary security against unreasonable intrusions upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible.” Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948) (emphasis added), overruled on other grounds by United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) the Supreme Court addressed the inherent tension between protecting an individual’s liberty on the one hand, and the real world necessities of law enforcement on the other. The Court concluded that the Fourth Amendment resolves that tension by allowing a warrantless arrest under certain, limited circumstances. The resulting compromise achieves the necessary balance between law enforcement and individual liberty because “a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of a crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54. The defendants in Gerstein were arrested pursuant to a prosecutor’s information. Under applicable Florida rules and statutes, prosecutors could charge noncapital offenses by information without a preliminary hearing or leave of court. State courts had previously held that the prosecutor’s filing of an information “foreclosed the suspect’s right to a preliminary hearing”. State courts had also held that ha-beas corpus was only available to challenge the probable cause for detention pursuant to an information under “exceptional circumstances.” Id. at 106, 95 S.Ct. 854. “As a result, a person charged by information could be detained for a substantial period solely on the decision of the prosecutor.” Id. On appeal, the Supreme Court framed the issue as follows: “whether a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty.” Id. at 104, 95 S.Ct. 854. Stated another way, the issue was, “whether a person" }, { "docid": "1275483", "title": "", "text": "tribunal the federal issues involved.’ ” Trainor v. Hernandez, supra, 431 U.S. at 441, 97 S.Ct. at 1917, quoting Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed. 488 (1973). Their argument here is intertwined with their argument that they are threatened with irreparable harm which is great and immediate. Essentially, they argue that since they are or will be incarcerated pursuant to the order of Judge Busse setting bail without the procedural and substantive guarantees to which they claim they are entitled, any existing Indiana procedures will be untimely regardless of how well they work or how receptive the Indiana courts are to their claims. The timeliness issue will be resolved with the issue of irreparable harm. 3. Federal intervention is not justified on the ground that plaintiffs face irreparable harm. Plaintiffs argue that their incarceration under the present practices and procedures of defendant Busse is great and immediate irreparable harm which mandates federal intervention. In support of this contention they rely on Gerstein v. Pugh, supra. In Gerstein, the federal plaintiffs were pretrial detainees who were being held on informations for substantial periods of time without individual probable cause determinations. Under Florida law, a prosecutor could charge non-capital crimes by information without a prior hearing and without leave of court. A suspect charged by information had no right to a preliminary hearing to determine probable cause for pretrial detention. The Court held that the Fourth Amendment required that there be a “fair and reliable determination of probable cause” made by a judicial officer “either before or promptly after arrest.” Gerstein, supra, 420 U.S. at 125, 95 S.Ct. at 868-69. In Gerstein, plaintiffs had filed a class action claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief. The district court held that plaintiffs’ claim for relief was not barred by the Younger doctrine. The Supreme Court, in a footnote, approved that determination. 420 U.S. at 108 n.9, 95 S.Ct. at 860. Plaintiffs in the instant action argue that Gerstein supports their claim that they" }, { "docid": "22574487", "title": "", "text": "on indictment by a grand jury, all other criminal cases in Florida may be commenced by “information filed by the prosecuting attorney under oath.” Florida Statutes § 904.01. Although preliminary hearings on probable cause for arrest with or without warrant are mandated by statute, the Florida judiciary has consistently held that such hearings are not required where the state prosecutes by filing an information certifying probable cause for arrest. Though the Florida Supreme Court has not been insensitive to the constitutional ramifications of incarceration without any preliminary probable cause hearing, it has declined to hold these practices unconstitutional or to fashion relief for arrestees held upon informations. Amended Rule 3.-131, 33 F.S.A., which provides for a right to a preliminary, hearing on any felony charge “unless charged in an information or indictment,” (Emphasis added), preserves the previous practice of permitting the state attorney’s certification to obviate the need for a preliminary hearing. Criminal actions in Dade County, therefore, often proceed upon information sworn to by the state attorney either before or after arrest without any judicial scrutiny prior to arraignment. If.jmable_or_unwilling to post bail, arresteesjceanain.in jail at least until arraignment. This incarceration may last as long as 30 days, and at least three days must pass before an information is filed against an arrestee and the case is cdnendaYedr' Dimng' this period, the defendant sees no judicial officer other than the bad judge. Arraignment is the first opportunity for a magistrate to inspect^Thertsfate attorney’s information setting forth the cause upon which the defendant was arrested. • The plaintiffs in this action, charged with various offenses under Florida law, filed a class action in the federal court on behalf of themselves and all other Dade County arrestees detained solely upon direct informations in which the state attorney certified probable cause for arrest and detention. They alleged that their pre-trial detention was in violation of the Constitution, and sought declaratory and injunctive relief entitling them to preliminary hearings. II. Abstention Fully cognizant that “A federal lawsuit to stop a prosecution in a state court is a serious matter.” Younger v. Harris, 401" }, { "docid": "18796335", "title": "", "text": "law occur within that period of time. The outcome of this case thus turns largely upon what, if any, absolute temporal limits are imposed by the Constitution on detentions before a judicial probable-cause determination is made. Relying on language in Gerstein v. Pugh, 420 U.S. at 113-14, 95 S.Ct. at 862-63, plaintiffs contend that defendants are violating the fourth and fourteenth amendments by detaining class members beyond “a brief period of detention to take the administrative steps incident to arrest” in the absence of a judicial probable-cause determination. Gerstein involved a constitutional challenge to Florida procedures under which criminal defendants charged by a prosecutor’s information might be detained for extended periods. Under those procedures, “[t]he only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days, Fla.Stat. Ann. § 907.045 (1973), and arraignment, which ... was often delayed a month or more after arrest.” Id. at 106, 95 S.Ct. at 859 (citing Pugh v. Rainwater, 332 F.Supp. 1107, 1110 (S.D.Fla.1971)) (footnote omitted). The Supreme Court concluded that the Florida procedures were unconstitutional. The Court observed that: [A] policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dis pensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the subject’s job, interrupt his source of income, and impair his family relationships.... When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Id. 420 U.S. at 113-14," }, { "docid": "23001155", "title": "", "text": "the administrative steps incident to arrest.” Gerstein, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54. The defendants in Gerstein were arrested pursuant to a prosecutor’s information. Under applicable Florida rules and statutes, prosecutors could charge noncapital offenses by information without a preliminary hearing or leave of court. State courts had previously held that the prosecutor’s filing of an information “foreclosed the suspect’s right to a preliminary hearing”. State courts had also held that ha-beas corpus was only available to challenge the probable cause for detention pursuant to an information under “exceptional circumstances.” Id. at 106, 95 S.Ct. 854. “As a result, a person charged by information could be detained for a substantial period solely on the decision of the prosecutor.” Id. On appeal, the Supreme Court framed the issue as follows: “whether a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty.” Id. at 104, 95 S.Ct. 854. Stated another way, the issue was, “whether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention....” Id. at 111, 95 S.Ct. 854. The Court began its analysis of that question by discussing the aforementioned practical limitations that arise from the practicalities of law enforcement. The Court observed: Maximum protection of individual rights could be assured by requiring a magistrate’s view of the factual justification prior to any arrest, but such a requirement would constitute an intolerable handicap for legitimate law enforcement. Thus, while the Court has expressed a preference for the use of arrest warrants when feasible, it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant. 420 U.S. at 113, 95 S.Ct. 854. However, the relaxation of the warrant .requirement is tightly tethered to circumstances that are sufficiently compelling to justify relaxing the protection endemic in review by a neutral magistrate. When such exceptional circumstances exist, “a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of" }, { "docid": "22574495", "title": "", "text": "L.Ed. 232 (1884), the Supreme Court rejected the proposition ' that due process under the Fourteenth Amendment requires state criminal prosecutions to be initiated via grand jury indictment. It said: “We are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.” Id. at 538, 4 S.Ct. at 122. (Emphasis added.) Since the lack of independent judicial determination of probable cause under the Dade County information system is precisely the infirmity alleged by the ap-pellees, Hurtado is of relevance only because it is the cornerstone on which later decisions were built. Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913) extended Hurtado, allowing the state to proceed by information where “The constitution and laws of Oregon . . , did not require any examination, or commitment by a magistrate, as a condition precedent to the institution of a prosecution by an information filed by the district attorney, nor require any verification other than his official oath.” Id. at 587, 33 S.Ct. at 783. The Court refused to distinguish Hurta-do on the ground that Oregon had not required the information to be preceded by a magistrate’s preliminary examina tion and said that the opportunity for a judicial examination “prior to the formal accusation by the district attorney” Id. at 590, 33 S.Ct. at 784. (Emphasis added), is not obligatory upon the states. Whether or not it is reasonable to infer that there is also no necessity for a subsequent judicial finding of probable cause without unnecessary delay is the precise issue in this case. In Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914), the defendants had moved to vacate an order of arrest upon the ground that it was made “without any tribunal magistrate, or other competent" }, { "docid": "17324886", "title": "", "text": "they were to be served concurrently or consecutively. There was no order consolidating the cases for sentencing. The district judge at the federal sentencing hearing refused to decide whether the two Pennsylvania sentences, the one for conspiracy and the one for trespass, had been consolidated and if so whether they were separated by an arrest, that is, whether Joseph had been arrested for the conspiracy before he committed the trespass. The district judge thought that these determinations were unnecessary because the two offenses were unrelated and since they were unrelated the sentences for them had to be counted separately. This was error. “Related sentences” is a defined term, defined in an application note to be sure but such notes are authoritative when, as in this case, they explain a guideline. United States v. Hill, 48 F.3d 228, 231 (7th Cir.1995). Sentences in two cases are “related” when the eases were consolidated for trial or sentencing, unless there was an intervening arrest. It doesn’t matter how unrelated the crimes really are. One could be for unauthorized use of the slogan “Smokey the Bear,” the other for having laundered drug money five years earlier. If the sentences were consolidated, they are to be treated as a single sentence for purposes of calculating the defendant’s criminal history. The district judge’s error was not consequential if the two Pennsylvania cases were not consolidated for sentencing or there was an intervening arrest. The second issue is analytically simpler. We are not disposed to accept the government’s invitation to treat the filing of a criminal complaint as the equivalent of an arrest, just because “arresting” a person already in custody is a pointless act. Some criminal proceedings begin with (or include) an arrest; others do not. There certainly is no legal requirement that a criminal defendant be arrested. Lem Woon v. Oregon, 229 U.S. 586, 590, 33 S.Ct. 783, 784-85, 57 L.Ed. 1340 (1913). Some defendants appear voluntarily to be arraigned, without having been arrested. Some are tried in absentia, sometimes having successfully eluded capture from the start. There is no requirement that they have ever" }, { "docid": "23001125", "title": "", "text": "at 46, 91 S.Ct. 746. In Younger, the federal plaintiff requested that the District Court find unconstitutional the law under which the government was prosecuting him and thereby foreclose his prosecution. In this case, the equitable relief requested is not aimed at state prosecutions, but at the legality of the rearrest policy and the pretrial detention of a class of criminal defendants. The issues here raised could not have been raised in defense of Stewart’s criminal prosecution, and the injunction sought would not bar his prosecution. We conclude that the Court’s application of Younger in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), controls our resolution of the abstention issue here. The defendants in Gerstein were arrested pursuant to a prosecutor’s information. Under applicable Florida rules and ' statutes, prosecutors could charge noncapital offenses by information without a preliminary hearing or leave of court. The Florida courts had previously held that the prosecutor’s filing of an information “foreclosed the suspect’s right to a preliminary hearing.” Id. at 106, 95 S.Ct. 854. Several arrestees detained under this procedure filed a class action against county officials in federal District Court alleging that they had “a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and in-junctive relief.” Id. at 107, 95 S.Ct. 854. The State of Florida argued that Younger compelled abstention because federal action would interfere with state proceedings by requiring the state to grant prompt probable cause hearings contrary to the state’s own rules and procedures. The Court unanimously rejected that argument. The Court stated: The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions[ ] [under] Younger v. Harris. The injunction was not directed at the state prosecutions as such, but only at the legality of the pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits. Id. at" }, { "docid": "22669693", "title": "", "text": "cases. Fla. Rule Crim. Proc. 1.122 (before amendment in 1972). But the Florida courts had held that the filing of an information foreclosed the suspect’s right to a preliminary-hearing. See State ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla. 1972). They had also held that habeas corpus could not be used, except perhaps in exceptional circumstances, to test the probable cause for detention under an information. See Sullivan v. State ex rel. McCrory, 49 So. 2d 794, 797 (Fla. 1951). The only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days, Fla. Stat. Ann. §907.045 (1973), and arraignment, which the District Court found was often delayed a month or more after arrest. Pugh v. Rainwater, 332 F. Supp. 1107, 1110 (SD Fla. 1971). As a result, a person charged by information could be detained for a substantial period solely on the decision of a prosecutor. Respondents Pugh and Henderson filed a class action against Dade County officials in the Federal District Court, claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief. Respondents Turner and Faulk, also in custody under informations, subsequently intervened. Petitioner Gerstein, the State Attorney for Dade County, was one of several defendants. After an initial delay while the Florida Legislature considered a bill that would have afforded preliminary hearings to persons charged by information, the District Court granted the relief sought. Pugh v. Rainwater, supra. The court certified the case as a class action under Fed. Rule Civ. Proc. 23 (b) (2), and held that the Fourth and Fourteenth Amendments give all arrested persons charged by information a right to a judicial hearing on the question of probable cause. The District Court ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention. It also ordered them to submit a plan providing preliminary hearings in all cases instituted by information. The defendants submitted a plan prepared by Sheriff E. Wilson Purdy, and" }, { "docid": "22574524", "title": "", "text": "liberty, or property, without due process of law . . . ” . Pre-arraignment incarceration may be subdivided into two classes: those who are eventually proceeded against by the state, either by information or indictment, and those who are released upon a finding by the state attorney that insufficient evidence for continuation of the prosecution exists. Though the class of plaintiffs here includes only those against whom the state attorney proceeds by information, we do not lightly dismiss the detention of a minimum of 1,165 defendants against whom charges are subsequently dropped. As a practical matter, the relief granted by the district court, by affording probable cause hearings after arrest to all arrestees, benefits also those against whom charges are not pressed. . See, e. g. Buchannon v. Wainwright, 474 F.2d 1006 (5th Cir. 1973) ; Jackson v. Smith, 435 F.2d 1284 (5th Cir. 1970) ; Scarbrough v. Dutton, 393 F.2d 6 (5th Cir. 1968). . Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962), which notes that since Hurtado prosecutions have often proceeded on informations filed by prosecutors without prior probable cause hearings, adds nothing to Ocampo. . Rule 3.131(b), Florida Rules of Criminal Procedure. . See text supra at p. 22. . Included in this listing were rights to a “public trial,” to be informed of the nature and cause of the accusation, to confront one’s accusors, and to have compulsory process for obtaining witnesses in one’s favor. . These offenses, which probably include those referred to by the district court as “prosecutions of the barking dog variety,” may reasonably be screened by the State Attorney alone at the request of complaining citizens because the defendant in such cases is not confined prior to trial. . If this were the case, a lapse of 10 calendar days between arrest ¡fnd preliminary hearing would be permitted. . Pugh was charged with robbery, a crime punishable by life imprisonment in Florida. See fn. 9." }, { "docid": "20795443", "title": "", "text": "OPINION AND FINAL JUDGMENT KING, District Judge. Plaintiffs Robert Pugh and Nathaniel Henderson brought this class action, in which plaintiffs Thomas Turner and Gary Faulk have intervened, seeking relief for the alleged deprivation of their rights as secured by the Fourth and Fourteenth Amendments to the Constitution of the United States. Jurisdiction is founded upon 28 U.S.C. § 1343(3), (4) and grows out of a Constitutional attack (42 U.S.C. § 1983) upon the procedure whereby plaintiffs were incarcerated, upon information filed by the state attorney, and held for trial in Dade County, Florida, without review by a commit ting magistrate of the probable cause for their arrest. The defendants herein are sued in their official capacities (sheriff, police chiefs, state attorney, justices of the peace and judges of small claims courts of Dade County and several of its municipalities) as individuals charged with the responsibility of administering the system under which plaintiffs were incarcerated. The plaintiffs contend that they have been deprived of a Constitutional right to a preliminary hearing before a judicial officer to determine whether there is probable cause that they committed the offenses with which they are charged. Under the present procedure the state attorney (or one of his assistants) considers the reports submitted by police officers of the results of their investigations and thereafter files a direct information and issues a capias for arrest of the individual charged with the offense. The person may be already in jail or is then arrested and waits in jail until either he is released on bond or is tried. There is no review by a judicial officer as to the probable cause for the arrest and detention of a person charged by the state attorney in a direct information. Plaintiffs further allege they have been denied their constitutionally protected right to equal protection of the law in that in certain instances the police will process cases through the offices of the justices of the peace instead of going to the office of the state attorney as was done herein. A justice of the peace conducts a preliminary hearing for" }, { "docid": "286377", "title": "", "text": "bond. But such inquiries were, in fact not made; and the prisoners were wholly deprived of any effective means to test the lawfulness of their detention. Rather, they were held pursuant to blanket informations filed by the Corporation Counsel. The informations were prepared on the basis of arrest data that was in fact faulty and should reasonably have been known to be inaccurate and erroneous; and at no time was there any inquiry by the public prosecutor into the circumstances of the arrest or the. evidence available upon which a criminal prosecution could properly be instituted. These informations having been filed, the Corporation Counsel halted the process of arraigning prisoners in the Superior Court, thereby depriving them of the opportunity to obtain a prompt judicial inquiry into the basis for their being held in detention. Those who had been arrested were given the alternative of either posting a predetermined sum as collateral bond without any chance to litigate the lawfulness of their restraint or prolonging an illegal confinement until such time as the District authorities decided to resume arraignments. Our decisions in Cooley v. Stone, Brown v. Fauntleroy, have highlighted the importance of the preliminary hearing as a procedure essential to -the protection of Fourth and Fifth Amendment rights, a prerequisite to valid penal custody. There is considerable doubt whether the mere filing of a criminal information by the public prosecutor can serve as a constitutionally adequate substitute for a judicial determination of probable cause for detention. In circumstances of a continuing detention— without provision for such judicial determination — at least one court has held an essentially similar practice to be viola-tive of due process. We need not now consider this question as a general matter. It is sufficient for present purposes to conclude that gravest constitutional problems are presented by this withdrawal of a probable cause judicial hearing procedure if the proof does establish, as indicated, that the public prosecutor has not made a reasonable effort to determine the existence of probable cause, in the face of danger signals of insufficiency, and has sought to abort an inquiry" }, { "docid": "22669692", "title": "", "text": "Mr. Justice Powell delivered the opinion of the Court. The issue in this case is whether a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty. I In March 1971 respondents Pugh and Henderson were arrested in Dade County, Fla. Each was charged with several offenses under a prosecutor’s information. Pugh was denied bail because one of the charges against him carried a potential life sentence, and Henderson remained in custody because he was unable to post a $4,500 bond. In Florida, indictments are required only for prosecution of capital offenses. Prosecutors may charge all other crimes by information, without a prior preliminary hearing and without obtaining leave of court. Fla. Rule Crim. Proc. 3.140 (a); State v. Hernandez, 217 So. 2d 109 (Fla. 1968); Di Bona v. State, 121 So. 2d 192 (Fla. App. 1960). At the time respondents were arrested, a Florida rule seemed to authorize adversary preliminary hearings to test probable cause for detention in all cases. Fla. Rule Crim. Proc. 1.122 (before amendment in 1972). But the Florida courts had held that the filing of an information foreclosed the suspect’s right to a preliminary-hearing. See State ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla. 1972). They had also held that habeas corpus could not be used, except perhaps in exceptional circumstances, to test the probable cause for detention under an information. See Sullivan v. State ex rel. McCrory, 49 So. 2d 794, 797 (Fla. 1951). The only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days, Fla. Stat. Ann. §907.045 (1973), and arraignment, which the District Court found was often delayed a month or more after arrest. Pugh v. Rainwater, 332 F. Supp. 1107, 1110 (SD Fla. 1971). As a result, a person charged by information could be detained for a substantial period solely on the decision of a prosecutor. Respondents Pugh and Henderson filed a class action against Dade County officials in the Federal District" }, { "docid": "18796358", "title": "", "text": "day, defendants appealed. At the same time, they filed an application for a stay in this court, which Judge Newman granted until July 14, when the application could be heard by a three-judge panel. On July 14, a panel of this court stayed the injunction until oral argument; at oral argument, the stay was extended pending the disposition of the appeal. . In its Opinion and Final Judgment, the district court in Gerstein ordered defendants to submit a plan for conducting preliminary hearings before judicial officers in all criminal cases initiated by direct information. Pugh v. Rainwater, 332 F.Supp. 1107, 1116 (S.D.Fla.1971). The district court adopted a plan under which a defendant would be entitled, within three hours of arrest, to a \"first appearance hearing” at which a magistrate would (1) advise the defendant of his rights and of the charges against him; (2) appoint counsel if the defendant was indigent; and (3) set a date and time for a preliminary hearing to determine whether probable cause exists. Pugh v. Rainwater, 336 F.Supp. 490, 491 (S.D.Fla.1972). Under the plan adopted by the district court, a preliminary hearing must be held within four days of the first appearance. Id. at 491, 492. Defendants subsequently appealed. While the appeal was pending, the Supreme Court of Florida amended that state’s Rules of Criminal Procedure to provide defendants not charged by information or indictment with preliminary hearings, at which probable cause would be determined, within four days of arrest. The Fifth Circuit accordingly directed the district court to reconsider its plan in light of the new rules. The district court held that the denial of preliminary hearings to individuals charged by information was unconstitutional, and reaffirmed its earlier plan. Pugh v. Rainwater, 355 F.Supp. 1286 (S.D.Fla.1973), aff’d in part and vacated in part, 483 F.2d 778 (5th Cir.1973), aff’d in part and rev’d in part sub nom. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). On appeal, the Fifth Circuit agreed that a preliminary hearing procedure should be accorded defendants charged by information. The court nevertheless vacated the part" }, { "docid": "847974", "title": "", "text": "In considering whether or not those persons arrested on suspicion and held for investigation have a right to preliminary hearings, this Court relies on the recent Supreme Court decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The unanimous Court in Ger-stein found that any defendant who is charged by prosecutor’s information and arrested without a warrant must, as a matter of Fourth Amendment right, be afforded a prompt probable cause hearing. The Gerstein Court spoke on the importance of a preliminary hearing to our criminal process: Once the suspect is in custody,- however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to the magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. . . . When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest. 95 S.Ct. at 863. Personal liberty is a precious right— becoming even more precious in its absence. The risk of losing one’s liberty cannot be further endangered by inadequate and unprotective criminal procedures. Therefore, the State must avail prospective detainees with a means whereby liberty is lost only upon a showing of probable cause for detention. To that end, the legislature has effectuated procedures whereby the right to liberty is sheltered against arbitrary action on the part of arresting officers. Rule 5, Federal Rules of Criminal Procedure. This Court will not sanction the disregard of procedural rules designed to safeguard personal rights. These rules for" }, { "docid": "18796334", "title": "", "text": "limit of twenty-four hours on such detentions absent a probable-cause determination. We do note that the district court made certain conclusory findings. The finding that the time between arrest and arraignment usually exceeds twenty-four hours is not challenged. Other findings, however, included statements that the steps “necessary” to an arrest “should” not take more than six or seven hours and that twenty-four hours is “sufficient” to complete all steps necessary for an arraignment. Although couched as factual findings, these statements are actually legal conclusions as to how much time is reasonable as a matter of law to carry out particular phases of the arrest-to-arraignment process. For example, the record does not detail what resources — for example, police personnel, vehicles, judges, lawyers, court personnel — are presently available to complete all the steps necessary for either probable-cause determinations or arraignments. The district court’s conclusions, therefore, are not that, given present resources, arraignments can reasonably take place within twenty-four hours. Instead, those conclusions are that whatever resources are presently available, arraignments must as a matter of law occur within that period of time. The outcome of this case thus turns largely upon what, if any, absolute temporal limits are imposed by the Constitution on detentions before a judicial probable-cause determination is made. Relying on language in Gerstein v. Pugh, 420 U.S. at 113-14, 95 S.Ct. at 862-63, plaintiffs contend that defendants are violating the fourth and fourteenth amendments by detaining class members beyond “a brief period of detention to take the administrative steps incident to arrest” in the absence of a judicial probable-cause determination. Gerstein involved a constitutional challenge to Florida procedures under which criminal defendants charged by a prosecutor’s information might be detained for extended periods. Under those procedures, “[t]he only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days, Fla.Stat. Ann. § 907.045 (1973), and arraignment, which ... was often delayed a month or more after arrest.” Id. at 106, 95 S.Ct. at 859 (citing Pugh v. Rainwater, 332 F.Supp. 1107, 1110 (S.D.Fla.1971)) (footnote omitted). The Supreme" }, { "docid": "847973", "title": "", "text": "have also admitted that during the four month period from May, 1974, through August 26,1974, thirty-seven (37) individuals were held, fifteen (15) of which were never charged, but were incarcerated an average of six and eight tenths (6.8) days before being released. The remaining twenty-four (24) were held an average of five (5.0) days before being charged. The facts, then, undeniably indicate that defendants are holding persons on the authority of the police arrest alone without promptly charging them and without a hearing before a magistrate. There are two questions for determination presently before this Court. First, whether those persons who are arrested on suspicion and held for investigation for periods exceeding twenty-four (24) hours without having charges brought against them and without being brought before a magistrate for a determination of probable cause for detention, are being denied their Constitutional rights under the Fourth Amendment. Secondly, if such persons are entitled to preliminary hearings on the issue of probable cause, what limitations must be set upon those hearings to insure their proper use? I. In considering whether or not those persons arrested on suspicion and held for investigation have a right to preliminary hearings, this Court relies on the recent Supreme Court decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The unanimous Court in Ger-stein found that any defendant who is charged by prosecutor’s information and arrested without a warrant must, as a matter of Fourth Amendment right, be afforded a prompt probable cause hearing. The Gerstein Court spoke on the importance of a preliminary hearing to our criminal process: Once the suspect is in custody,- however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to the magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may" }, { "docid": "22574494", "title": "", "text": "decide whether incarceration without a preliminary hearing is an injury requiring federal intervention where Younger would otherwise bar our jurisdiction. Also, we need not decide whether Florida’s state court decisions, cited supra, so clearly show that under no circumstances will the state courts accord a constitutional right to a preliminary hearing that it would have been futile to require petitioners to seek redress in the state court system. III. Probable Cause Hearings The central issue in this case is whether the Fourth and Fourteenth Amendments require that arrestees held for trial upon informations filed by the state attorney must be afforded preliminary hearings before a judicial officer without unnecessary delay. More precisely, in the face of our numerous decisions holding that lack of such preliminary hearings will not vitiate a conviction, are the plaintiff arrestees, nonetheless, entitled to a judgment declaring that due process necessitates a probable cause preliminary hearing before a magistrate when the state attorney prosecutes presently-confined arrestees by filing an information? In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme Court rejected the proposition ' that due process under the Fourteenth Amendment requires state criminal prosecutions to be initiated via grand jury indictment. It said: “We are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.” Id. at 538, 4 S.Ct. at 122. (Emphasis added.) Since the lack of independent judicial determination of probable cause under the Dade County information system is precisely the infirmity alleged by the ap-pellees, Hurtado is of relevance only because it is the cornerstone on which later decisions were built. Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913) extended Hurtado, allowing the state to proceed by information where “The constitution and laws of Oregon ." }, { "docid": "22669694", "title": "", "text": "Court, claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief. Respondents Turner and Faulk, also in custody under informations, subsequently intervened. Petitioner Gerstein, the State Attorney for Dade County, was one of several defendants. After an initial delay while the Florida Legislature considered a bill that would have afforded preliminary hearings to persons charged by information, the District Court granted the relief sought. Pugh v. Rainwater, supra. The court certified the case as a class action under Fed. Rule Civ. Proc. 23 (b) (2), and held that the Fourth and Fourteenth Amendments give all arrested persons charged by information a right to a judicial hearing on the question of probable cause. The District Court ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention. It also ordered them to submit a plan providing preliminary hearings in all cases instituted by information. The defendants submitted a plan prepared by Sheriff E. Wilson Purdy, and the District Court adopted it with modifications. The final order prescribed a detailed post-arrest procedure. 336 F. Supp. 490 (SD Fla. 1972). Upon arrest the accused would be taken before a magistrate for a “first appearance hearing.” The magistrate would explain the charges, advise the accused of his rights, appoint counsel if he was indigent, and proceed with a probable cause determination unless either the prosecutor or the accused was unprepared. If either requested more time, the magistrate would set the date for a “preliminary hearing,” to be held within four days if the accused was in custody and within 10 days if he had been released pending trial. The order provided sanctions for failure to hold the hearing at prescribed times. At the “preliminary hearing” the accused would be entitled to counsel, and he would be allowed to confront and cross-examine adverse witnesses, to summon favorable witnesses, and to have a transcript made on request. If the magistrate found no probable cause, the accused would be discharged. He then could not be charged with" } ]

[ { "docid": "9654425", "title": "", "text": "§ 1.46, at 60-61 (1977) (Manual), which argues that the practice may create the possibility of collusion or improper pressure by defendants on “unofficial” counsel for the class. The Manual recommends a firm prophylactic rule prohibiting the bypassing of an early formal class certification and the formation of temporary classes for settlement purposes. Despite the Manual’s concerns and the misgivings expressed in the Franklin National Bank footnote, we concluded in Plummer v. Chemical National Bank, 668 F.2d 654, 656 (2 Cir. 1982), that “[although negotiations in the instant case were conducted by undesignated class . representatives without pretrial discovery, this, standing alone, did not preclude judicial approval”, 668 F.2d at 658. See also City of Detroit v. Grinnell Corp., 495 F.2d 448, 464—66 (2 Cir. 1974). A similar view is taken in Judge Wisdom’s thorough opinion in In re Beef Industry Antitrust Litigation, 607 F.2d 167, 173-78 (5 Cir. 1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981), which carefully reviews the authorities and commentary on the question. Much like our decision in Plummer v. Chemical Bank, the Fifth Circuit concluded that: A blanket rule prohibiting the use of temporary settlement classes may render it virtually impossible for the parties to compromise class issues and reach a proposed class settlement before a class certification. Such a firm restriction does not appear necessary or desirable. The hallmark of Rule 23 is the flexibility it affords to the courts to utilize the class device in a particular case to best serve the ends of justice for the affected parties and to promote judicial efficiencies. Temporary settlement classes have proved to be quite useful in resolving major class action disputes. While their use may still be controversial, most courts have recognized their utility and have authorized the parties to seek to compromise their differences, including class action issues, through this means. In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 177-78, quoting 3 Newberg, Class Actions § 5570c, at 479-80 (1977). Other circuits have held that the absence of class certification prior to the notice of the settlement" } ]

[ { "docid": "23219671", "title": "", "text": "It is far preferable for the parties, rather than the court, to construct the mechanisms by which difficult choices will be made. While imperfect, the Settlement does in good faith attempt to resolve such questions. The asbestos tragedy has produced many victims. The present Settlement cannot eradicate the harsh and inequitable consequences resulting from the present failure of the Trust, the past delicts of Manville or the limits on available resources to compensate. It can only begin to provide more sensible and economically-feasible recovery for those suffering from asbestos-related injuries. The Settlement moves modestly toward those goals. 4. Settlement Prior to Certification of Class The Second Circuit has cautioned that courts must carefully scrutinize compromises that were negotiated prior to class certification and where absent class members only receive notification at the time of settlement. See Plummer v. Chemical Bank, 668 F.2d 654, 658 (2d Cir.1982); Handschu v. Special Servs. Div., 605 F.Supp. 1384, 1394 (S.D.N.Y.1985), aff'd, 787 F.2d 828 (2d Cir.1986). To avoid possible collusion among, or undue influence by, the defendants on potential class representatives, there must be a “clearer showing of a settlement’s fairness, reasonableness and adequacy and the propriety of the negotiations leading to it ...” Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983). Pre-certification settlements are discouraged if the record necessary to assess the fairness of the proposed compromise has not been developed at that early stage in the litigation. See, e.g., Plummer v. Chemical Bank, 668 F.2d 654, 658-60 (2d Cir.1982) (facts insufficiently developed to enable the court to appraise settlement intelligently). In contrast, settlements of well-developed claims in cases which have either been pending for several years or in which substantial and completed discovery enables the court to independently review the benefits of settlement to absent class members present less concern. See, e.g., In re Beef Indus. Antitrust Litig., 607 F.2d 167, 176 (5th Cir.1979) (“settlement achieved after several years of pending litigation”), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); City of Detroit v. Grinnell" }, { "docid": "18763457", "title": "", "text": "23(c)(2)’s requirement of “the best notice practicable under the circumstances.” There is no merit at all to this claim. The rule requires only that notice be mailed individually to “all class members whose names and addresses may be ascertained through reasonable effort.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173, 94 S.Ct. 2140, 2150, 40 L.Ed.2d 732 (1974); cf. In re Beef Industry Antitrust Litigation, 607 F.2d 167, 178-79 (5th Cir.1979) (stressing trial court’s great discretion over matters of notice and determination of class), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). By contrast, the court here not only required plaintiffs to mail individual notice in English and Spanish to all persons they could reasonably locate, it also ordered bilingual radio and newspaper announcements for a sixty-day period in the areas where class members were most likely to be found. In addition, over defendants’ objection, plaintiffs personally contacted as many class members as possible. Given the mobile, semi-literate character of the class, these efforts fully satisfied the dictates of Rule 23(c). B. Claims and Claimants Defendants’ first challenge to individual claimants concerns two crew leaders, Martinez and Quintero, and any crew members who could not legally work in Presidio. These persons, they contend, are not included in the definition of the class. This contention overlooks what the court did under its broad authority to redefine the class “as appropriate in response to the progression of the case from assertion to facts.” Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). The class, as originally certified, did exclude crew leaders and consist only of “domestic farm workers,” defined as United States citizens-or aliens lawfully admitted to work in the United States. In conformance with the evidence as the suit progressed, however, the court periodically exercised its discretion to restructure the class. By final judgment, the class included each of the four crew leaders and all recruited crew members regardless of immigration status. Defendants have not shown this to constitute an abuse of discretion. See" }, { "docid": "20044355", "title": "", "text": "that this practice could foster collusion or improper pressure by defendants and, thus, recommended a firm prophylactic rule prohibiting the formation of settlement classes. Manual for Complex Litigation, § 1.46 (1977). However, as the volume and complexity of class actions increased, courts realized that such a blanket rule unduly inhibited settlement of class issues before class certification. In re Beef Indus. Antitrust Litig., 607 F.2d 167 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). The hallmark of Rule 23 is its flexibility to utilize class actions to best serve the ends of justice and to promote judicial efficiencies. Id. Also, Fed.R.Civ.P. 23 does not forbid the formation of such classes. Consequently, many jurisdictions now authorize settlement classes. See e.g. Weinberger v. Kendrick, 698 F.2d 61 (2nd Cir. 1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); In re Beef Indus., supra; In re First Commodity Corp. of Boston Custom Accounts Litig., 119 F.R.D. 301 (D.Mass.1987); Girsh v. Jepson, 521 F.2d 153 (3rd Cir.1975). Indeed, the current Manual for Complex Litigation, 2nd Ed. § 30.45 (1985) recognizes the use of settlement classes citing such benefits as early settlement, reduced attorney fees, reduced costs which might have been spent in contesting Rule 23 certification, and concomitant increase of settlement funds, Id. at § 30.45. For these reasons, I hold that conditional class certification for settlement purposes may be ordered in an appropriate case. In determining the propriety of certifying a settlement class, courts weigh its benefits and risks. Contrary to the above mentioned benefits, risks include the difficulty in early assessment of the fairness of a settlement. Moreover, crucial information may be lacking, including the number of members in the class, the size of their potential claims, the strengths and weaknesses of the parties’ positions, and the class members’ benefit under the settlement. In a securities fraud class action, however, unlike, for example, a products liability class action, the size of the class can be fairly estimated through stock registration information. In addition, it is not difficult to assess the total amount" }, { "docid": "23219672", "title": "", "text": "class representatives, there must be a “clearer showing of a settlement’s fairness, reasonableness and adequacy and the propriety of the negotiations leading to it ...” Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983). Pre-certification settlements are discouraged if the record necessary to assess the fairness of the proposed compromise has not been developed at that early stage in the litigation. See, e.g., Plummer v. Chemical Bank, 668 F.2d 654, 658-60 (2d Cir.1982) (facts insufficiently developed to enable the court to appraise settlement intelligently). In contrast, settlements of well-developed claims in cases which have either been pending for several years or in which substantial and completed discovery enables the court to independently review the benefits of settlement to absent class members present less concern. See, e.g., In re Beef Indus. Antitrust Litig., 607 F.2d 167, 176 (5th Cir.1979) (“settlement achieved after several years of pending litigation”), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); City of Detroit v. Grinnell Corp., 495 F.2d 448, 465 (2d Cir.1974) (settlement after almost four years of litigation, extensive discovery and pretrial practice). Courts have differed in their view of the propriety of certification of classes for settlement purposes. Compare In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 305 (6th Cir.1984) (vacating certification of a settlement class) with In re School Asbestos Litig., 789 F.2d 996, 1009 (3d Cir.) (recognition that most tort cases settle often resulting in savings for all concerned), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986); In re Beef Indus. Antitrust Litig., 607 F.2d 167, 175-76 (5th Cir. 1979) (certified temporary settlement class), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); see also Weinberger v. Kendrick, 698 F.2d 61, 72-73 (2d Cir.1982) (temporary settlement classes useful in resolving major class action disputes), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); In re First Commodity Corp. of Boston Customer Accounts Litig., 119 F.R.D. 301, 306-08 (D.Mass.1987) (same); In re Mid-Atlantic Toyota Antitrust Litig.," }, { "docid": "12031903", "title": "", "text": "preserve an appeal from a class settlement, a class member must, during the course of proceedings, object to either the terms of the settlement, see Research Corp. v. Asgrow Seed Co., 425 F.2d 1059,1060-61 (7th Cir.1970), or to the nature of the class certification. See, e.g., Howard v. McLu cos, 782 F.2d 956, 961 (11th Cir.1986) (appellants’ failure to seek an opt out provision at fairness hearing one reason for rejecting their challenge to consent decree). This does not mean that a party must abstain from the settlement process. Such a ruling would cause parties to make an unnecessary choice between seeking a reasonable accommodation with the other parties and gambling that the outcome of an appeal would be favorable to their position. Moreover, the prospect that a non-participant would appeal the settlement places undesirable pressures of uncertainty on the negotiating parties. However, it is appropriate to require that parties pursue their objections before the district court as a precondition for appeal. In this way, other parties would not be surprised and the district court would be afforded the opportunity to bring its expertise to bear on the alleged problem. We add that the district court of course is not required to disregard the effect of participation in the settlement process in reaching the certification decision. Appellants in this case adequately pursued their objections to the class certification throughout the proceedings. The record shows that appellants on several occasions objected to the certification. As indicated, the district court twice certified the class action. The second certification was for “settlement purposes.” 622 F.Supp. at 1433. Despite the controversy surrounding this practice, courts at times have certified a class temporarily for purposes of settlement. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert, denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); In re Beef Industry Antitrust Litigation, 607 F.2d 167, 178 (5th Cir.1979), cert, denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); Girsh v. Jepson, 521 F.2d 153, 155 n. 3 (3d Cir.1975); In re Baldwin-United, Corp., 105 F.R.D. 475, 478 (S.D.N.Y.1984). In these" }, { "docid": "23224121", "title": "", "text": "at 176, and Brucker v. Thyssen-Bornemisza Europe N. V., 424 F.Supp. 679, (S.D.N.Y.1976), aff’d sub nom., Brucker v. Indian Head, Inc., 559 F.2d 1202 (2d Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 183 (1977), where “the settlement was not negotiated in the early stages of the dispute, but rather after the parties had engaged in considerable litigation.” 424 F.Supp. at 688. While the settlement negotiations in the instant case apparently proceeded on the basis of information voluntarily furnished by the Bank, some of this information was received by plaintiffs’ attorneys pursuant to a stipulation of confidentiality. In each of the foregoing cases, the court also was careful to note the absence of any conflict between the proposed class and its unofficial representative. See City of Detroit, 495 F.2d at 465; In re Beef, 607 F.2d at 179; Brucker, 424 F.Supp. at 688-89. Although negotiations in the instant case were conducted by undesignated class representatives without formal pretrial discovery, this, standing alone, did not preclude judicial approval. However, the district judge was bound to withhold such approval until he had closely and carefully scrutinized the joint settlement proposal to make sure that it was fair, adequate and reasonable, and not influenced in any way by fraud or collusion. Greenfield v. Villager Industries, Inc., 483 F.2d 824, 833 (3d Cir. 1973). The district judge also had to satisfy himself that the named plaintiffs were adequate representatives of the entire class in this across-the-board type of settlement. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403-06, 97 S.Ct. 1891, 1896-98, 52 L.Ed.2d 453 (1977), and that plaintiffs had no interests which were antagonistic to those of other class members, Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). Indeed, if Judge Conner was not preliminarily satisfied that class members had been adequately represented in the settlement negotiations, he was empowered to explore that issue before submitting the proposed settlement to the class. See In re Traffic Executive Association-Eastern Railroads, 627 F.2d 631, 634 (2d Cir. 1980); Burwell v. Eastern Airlines, Inc., 68 F.R.D." }, { "docid": "23124519", "title": "", "text": "in the use of the class action decision stated in McDonnell Douglas, and under the “limited fund” doctrine. The Court, however, was careful to point out that it was not determining that class certification for settlement purposes of the mass tort in that case was impermissible. To emphasize this fact, the Court declared at p. 305, n. 10: We do note that there is precedent for the proposition that a class can be certified for settlement purposes only. See, e.g., In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). The Beef Industry case involved the certification of a temporary settlement class prior to certification of a class for trial. In this case, the District Judge certified a class for settlement purposes after having rejected the same class for trial purposes. The District Judge therefore implicitly held that the standards for certifying a class are different depending on whether the class is for settlement or whether it is for trial. Because we decide the case on other grounds, we do not consider whether this holding is correct. As Bendectin had recognized, courts in cases involving numerous parties, though not mass-tort cases, had granted class certification for settlement purposes. Judge Wisdom in In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981), carefully considered all angles of the question of class certification to promote settlement and, in his con vincing opinion, found certification under proper circumstances to be in order. That decision has been followed in other cases, perhaps the most notable one being Weinberger v. Kendrick, 698 F.2d 61, 72-73 (2d Cir.1982), in which Judge Friendly, speaking for the court, said: The hallmark of Rule 23 is the flexibility it affords to the courts to utilize the class device in a particular case to best serve the ends of justice for the affected parties and to promote judicial efficiencies. Temporary settlement classes have proved to be quite useful in resolving major class action disputes." }, { "docid": "14258186", "title": "", "text": "v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982) (Friendly, J.), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Plummer v. Chemical Bank, 668 F.2d 654, 657-58 (2d Cir.1982); Simer v. Rios, 661 F.2d 655, 664-66 (7th Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.1979) (Widsom, J.), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); Shelton v. Pargo, Inc., 582 F.2d 1298 (4th Cir.1978); 7B C. Wright A. Miller & M. Kane, Federal Practice and Procedure § 1797, pp. 346-50 (2d ed. 1986) (“courts generally have agreed that actions filed as class suits are within the scope of Rule 23(e) even though they have not been formally certified at the time settlement is reached”); 3B J. Moore, Moore’s Federal Practice 1123.80[2], p. 509 & n. 11 (2d ed. 1985); Comment, The Applicability of Rule 23(e) to Precertification Proceedings: The Functional Approach Applied, 25 VilLL. Rev. 487 (1979-80). The majority relies heavily on Judge Friendly’s opinion in Weight Watchers of Philadelphia v. Weight Watchers International, 455 F.2d 770 (2d Cir.1972), which preceded by a decade his opinion in Wein-berger v. Kendrick, 698 F.2d 61. Weight Watchers does not preclude the approach I propose. That case, which was decided on a motion to dismiss the appeal, held nonap-pealable an order allowing defendant to conduct settlement discussions with members of a putative class; it did not deal with the issue of attorney’s fees at all. The majority places undue reliance on dictum in that opinion, which suggests that Rule 23 does not prevent negotiations between defendants and individual members of a potential class. 455 F.2d at 773. Judge Friendly acknowledged, however, that a settlement with individual class members, who may compromise their individual claims and possibly dilute the class, differs from an offer to the class as a whole, which could moot the entire action. Id. at 773, 775. Unlike the defendants in Weight Watchers, defendants in this case did not attempt to negotiate with individual potential class members. Instead," }, { "docid": "12031904", "title": "", "text": "would be afforded the opportunity to bring its expertise to bear on the alleged problem. We add that the district court of course is not required to disregard the effect of participation in the settlement process in reaching the certification decision. Appellants in this case adequately pursued their objections to the class certification throughout the proceedings. The record shows that appellants on several occasions objected to the certification. As indicated, the district court twice certified the class action. The second certification was for “settlement purposes.” 622 F.Supp. at 1433. Despite the controversy surrounding this practice, courts at times have certified a class temporarily for purposes of settlement. See Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir.1982), cert, denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); In re Beef Industry Antitrust Litigation, 607 F.2d 167, 178 (5th Cir.1979), cert, denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); Girsh v. Jepson, 521 F.2d 153, 155 n. 3 (3d Cir.1975); In re Baldwin-United, Corp., 105 F.R.D. 475, 478 (S.D.N.Y.1984). In these cited cases, a class was not certified prior to the commencement of settlement discussions and the notice of class certification accompanied the notice of settlement. In reviewing settlement certifications, a special standard has been employed. See, e.g., Officers for Justice v. Civil Service Commission of San Francisco, 688 F.2d 615, 633 (9th Cir.1982), cert, denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983) (“[Cjertification issues raised by class action litigation that is resolved short of a decision on the merits must be viewed in a different light.”); In re Chicken Antitrust Litigation, 560 F.Supp. 957, 960 (N.D.Ga.1980). Such review gives eye to protecting the plaintiffs’ interests and preventing collusion between defendants and plaintiffs purportedly representing the class during negotiations. Particularly, in assessing the propriety of class certification, the courts evaluate the negotiation process and the settlement itself. See In re Beef Industry Antitrust Litigation, 607 F.2d at 176; Weinberger, 698 F.2d at 73. However, despite the district court’s depiction here, this case is meaningfully different from most of those involving settlement class certifications." }, { "docid": "17343283", "title": "", "text": "settlement. [M], II. ANALYSIS OF THE FAIRNESS, ADEQUACY AND REASONABLENESS OF THE PROPOSED SETTLEMENT, AND THE METHODS BY WHICH IT WAS NEGOTIATED This action was settled prior to certification. A class may be certified “solely for purposes of settlement where a settlement is reached before a litigated determination of the class certification issue.” Woodward v. NOR-AM Chem. Co., 1996 WL 1068670 *14 (S.D.Ala.1996), citing In re Beef Indus. Antitrust Litig., 607 F.2d 167, 173-78 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981) . In Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), the Supreme Court held that because a settlement class action obviates a trial, the district judge deciding whether to certify a settlement class action “need not inquire whether the case, if tried, would present intractable management problems,” under Rule 23(b)(3)(D). However, “the settlement context demands undiluted, even heightened attention to unwarranted or over-broad class definitions.” Id. Regardless of whether a class is certified for settlement or for trial, the Court must find these prerequisites are met: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). The proposed class must also meet the requirements of one of the three class types found in Rule 23(b). In this case, the parties sought certification under Rule 23(b)(3), on the basis that “the questions of law or fact common to the members of the class predominate” over individual issues of law or fact and that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Because the undersigned found that the Rule 23(a) and (b) standards were satisfied, the settlement class was preliminarily certified, and notice to putative members of the proposed class was required in the Modified" }, { "docid": "22369874", "title": "", "text": "for appellant Grunin participated iri the hearing and voiced his objections through cross-examination. At the close of the hearings the district court approved the settlement stating simply that it was “fair, reasonable, and adequate as to said class and sub-class plaintiffs.” Another order was entered on February 1, 1974, awarding attorneys’ fees to respective claimants. Appeals were taken from the entry of each order. I. The initial claim set forth by appellant Grunin is that the- notice sent to class and subclass members in November regarding the second proposed settlement was so inadequate as to timing, content, and means of transmission that it violated the requirements of Rule 23 and the dictates of due process. We disagree. By virtue of the fact that an action maintained as a class suit under Rule 23 has res judicata effect on all members of the class, due process requires that notice of a proposed settlement be given to the class. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172-77, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Greenfield v. Villager Industries, Inc., 483 F.2d 824, 833-34 (3d Cir. 1974); Air Line Stewards & Stewardesses Ass’n, Local 550 v. American Airlines, Inc., 455 F.2d 101, 108 (7th Cir. 1972). See also 3B J. Moore, Federal Practice U 23.80[1] at 23—1502; Dole, The Settlement of Class Actions for Damages, 71 Colum.L. Rev. 971, 976-78 (1971); Manual for Complex Litigation §§ 1.45 & 1.46 (1973). The notice given must be “reasonably calculated, under all of 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, 657, 94 L.Ed. 865 (1950). In addition, the notice must “reasonably to convey the required information * * and it must afford a reasonable time for those interested to make their appearance.” Id. (citations omitted). See also Greenfield, 483 F.2d at 834; Milstein v. Werner, 57 F.R.D. 515, 518 (S.D.N.Y.1972). However, Rule 23(e) provides that notice be given “in such manner as the court directs.”" }, { "docid": "23219675", "title": "", "text": "of the case as a common question class action for settlement purposes would enhance the prospects for a group settlement, then Rule 23 authorizes certification. Trangsrud, Joinder Alternatives in Mass Tort Litigation, 70 Corn.L.Rev. 779, 835 (1985). While the Settlement in this matter was accomplished before certification of the class, the record developed prior to and during the proceedings is voluminous and supports the settlement. Here the strength of the limited fund claim was clear at least from the time the Special Master’s Report was filed making precerti-fication settlement negotiations appropriate. Cf. County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1422, 1424 (E.D.N.Y.1989), aff'd, 907 F.2d 1295, 1323-26 (2d Cir.1990); Plummer v. Chemical Bank, 668 F.2d 654, 656-58 (2d Cir.1982); Weinberger v. Kendrick, 698 F.2d 61, 72-73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); In re Beef Ind. Antitrust Litig., 607 F.2d 167, 173-78 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). The Second Circuit has approved, under appropriate circumstances, simultaneous notice to members of the pendency of the class action and the terms of the proposed settlement. Weinberger v. Kendrick, 698 F.2d 61, 70-73 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983). In addition, the proposed settlement may include a provision conditioning settlement of the suit on class certification by the court. Long Island Lighting Co., 710 F.Supp. at 1425; Weinberg v. Lear Fan Corp., 627 F.Supp. 719, 722-24 (S.D.N.Y.1986). In the instant case, ample protection to the class was provided. Detailed notice was furnished to all known class members by mail and wide publicizing within the industry, unions and White Lung Associations. Mindful of the responsibility to conduct searching inquiry of a precertification settlement, the courts scheduled exhaustive fairness hearings. The courts have evaluated all information obtained during those hearings and thoroughly familiarized themselves with the extensive written submissions received in the course of the proceedings. 5. Alternatives to Settlement A significant factor that the courts must consider in evaluating the fairness of the settlement is its" }, { "docid": "12931654", "title": "", "text": "of other class members and. the claims are based on the same legal theory.” Dura-Bilt v. Chase Manhattan Corp., supra, 89 F.R.D. at 99. Under such circumstances, “by advancing their own interests, plaintiffs will advance the interests of the class.” Id. (citations omitted). Since the same Hospital procedures give rise to the claims of all members of the proposed class, plaintiff’s claim satisfies the typicality requirement. Defendants have argued that plaintiff’s claim that he was misled by the Health Services’s physician to submit to a test could not be typical to other members of the class. Indeed, plaintiff’s drug testing was unusual because, unlike most employees, plaintiff was tested twice. Also, unlike some members of the proposed class, plaintiff’s test results were negative. It is not necessary, however, to have a representative claim that is identical to those of the class members. See e.g., Wilder v. Bernstein, 499 F.Supp. 980, 992-993 (S.D.N.Y.1980); Vulcan Society of Westchester v. Fire Dep’t of City of White Plaines, supra, 82 F.R.D. at 401. Differences in the degree of harm suffered, or in the ability to prove damages, do not necessarily vitiate the typicality of a plaintiff’s claim. Mersay v. First Republic Corporation of America, 43 F.R.D. 465, 468-69 (S.D.N.Y.1968). As noted above, the main issues in this case, concerning HHC facilities’ drug testing policies and their implementation, are common to all employees. “Whether plaintiff will or will not be successful at trial in proving damages is immaterial at this stage of the proceeding.” Sanders v. Faraday Laboratories, Inc. 82 F.R.D. 99, 101 (E.D.N.Y.1979), citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152-2153, 40 L.Ed.2d 732 (1974). Plaintiff need only demonstrate that he “possesses] the same interest and suffer[s] the same injury” as the proposed class members. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974). Because plaintiff alleges that he was deprived his rights under a policy and practice affecting many, sufficient commonality exists to warrant class action. 4. Representation In determining whether a plaintiff will fairly and" }, { "docid": "12931655", "title": "", "text": "suffered, or in the ability to prove damages, do not necessarily vitiate the typicality of a plaintiff’s claim. Mersay v. First Republic Corporation of America, 43 F.R.D. 465, 468-69 (S.D.N.Y.1968). As noted above, the main issues in this case, concerning HHC facilities’ drug testing policies and their implementation, are common to all employees. “Whether plaintiff will or will not be successful at trial in proving damages is immaterial at this stage of the proceeding.” Sanders v. Faraday Laboratories, Inc. 82 F.R.D. 99, 101 (E.D.N.Y.1979), citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152-2153, 40 L.Ed.2d 732 (1974). Plaintiff need only demonstrate that he “possesses] the same interest and suffer[s] the same injury” as the proposed class members. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974). Because plaintiff alleges that he was deprived his rights under a policy and practice affecting many, sufficient commonality exists to warrant class action. 4. Representation In determining whether a plaintiff will fairly and adequately protect class interests, courts have asked two questions: (1) whether plaintiffs have any interests which are antagonistic to absent class members, and (2) whether the representative party and his attorney can prosecute the action vigorously. Akerman v. Oryx Communications, Inc., 609 F.Supp. 363, 378 (S.D.N.Y.1984); Kuck v. Berkey Photo, Inc., 81 F.R.D. 736, 740 (S.D.N.Y.1979). In determining the adversity of interest “ ‘only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.’ ” Kuck v. Berkey Photo, Inc., supra, 81 F.R.D. at 740, citing 7 Wright & Miller, Federal Practice & Procedure § 1768 at 639 (1972). Plaintiff is alleging that there has been a drug testing violation and his interests are common with all employees similarly situated. As noted earlier, plaintiff’s claims and interests are virtually identical with those of other members of the class and, therefore, the plaintiffs have no significant antagonistic interests. As to counsel’s competency, no one has challenged the representation, and the Court will not inquire further into" }, { "docid": "967256", "title": "", "text": "a settlement class simultaneously with the approval of the pre-certification settlement is widely accepted. Bowling v. Pfizer, Inc., 143 F.R.D. 141, 157 (S.D.Ohio 1992) (“tentative settlement can precede or be concurrent with class certification” (quoting Clark Equipment Co. v. International Union, Allied Indus. Workers of America, 803 F.2d 878, 881 (6th Cir. 1986))); County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1422, 1424 (E.D.N.Y.1989); In re Beef Industry Antitrust Litig., 607 F.2d 167, 173-78 (5th Cir. 1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981); see also Herbert Newberg & Alba Conte, Newberg on Class Actions §§ 11.22, 11.27 (3d ed. 1992). By granting the requested certification, the parties will be able to avoid protracted litigation and effectuate a settlement that will provide immediate and substantial benefits to the members of the class. Moreover, given the lengthy, active, arms length negotiations between the parties and the fairness of the settlement, there is no danger of abuse of the settlement class device in this case. Federal Rule of Civil Procedure 23(a) explicitly sets forth four prerequisites to class certification: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims of the class representatives are typical of the claims of the class; and, (4) the class representatives will fairly and adequately protect the interests of the class. In addition to meeting the requirements of Rule 23(a), the proposed class must also satisfy one of the three subsections of Rule 23(b). The Court concludes that the class does meet the requirements of Rule 23(a) as follows: Numerosity (Rule 23(a)(1)). This provision focuses on the practicality of joining all prospective class members in a single lawsuit. Where joinder is impractical, a suit may be maintained as a class action in the interest of judicial economy and to ensure access to the judicial system. Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 1174, 63 L.Ed.2d 427 (1980). Although Rule 23 requires no minimum number of class" }, { "docid": "23224118", "title": "", "text": "out. On July 10, 1981, Judge Conner filed an opinion and order denying appellants’ motion for approval of the settlement. Influenced in part by the Manual for Complex Litigation’s admonishment against pre-certification settlement negotiations, Judge Conner felt that the procedure followed in the instant case required him to take special care to assure himself that the settlement was fair, reasonable, and adequate. He concluded that the record before him was inadequate to support a responsible finding that the settlement was fair, reasonable, and adequate or that the “grossly disparate benefits” awarded the named plaintiffs were justified. Appellants urge that we either make a de novo examination of the record and reverse the decision below or remand for further proceedings. Because our review of the record satisfies us that Judge Conner’s misgivings were warranted at least in part, we adopt the latter alternative. Although tentative designations of class for settlement purposes are not uncommon, they have been the subject of considerable controversy. See In re Beef Industry Antitrust Litigation, 607 F.2d 167, 173-78 (5th Circuit 1979). Section 1.46 of the Manual for Complex Litigation suggests that ordinarily, before any settlement negotiations occur, there should be a class action determination and that, if settlement has been negotiated before class action determination and the appointment of a class representative, the court must be doubly careful in evaluating the fairness of the settlement. Readers of this opinion, who do not have ready access to the Manual, will find the reasons for its Board of Editors’ recommendations set forth in the Appendix of In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 183-84. The recommendations contained in the Manual were of sufficient merit to warrant the district judge’s consid eration. See McDonald v. Chicago Milwaukee Corp., 565 F.2d 416, 420 (7th Cir. 1977); Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 33 (3d Cir. 1971). Because of the limited control exercisable by class members, class settlements are susceptible to abuse. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir.), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020," }, { "docid": "15887693", "title": "", "text": "of mandatory, mass-tort, futures-only class actions, we held that “tentative or temporary settlement classes are favored when there is little or no likelihood of abuse, and the settlement is fair and reasonable and under the scrutiny of the trial judge.” Meat Price Investigators Ass’n v. Iowa Beef Processors (In re Beef Indus. Antitrust Litig.), 607 F.2d 167, 174 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). We even went so far as to “agree” with Professor Newberg that parties may “compromise their differences, including class action issues, through this means.” Id. at 177-78 (quoting 3 Newberg on Class Aotions § 5570c, at 476). We took Beef Industry to its logical conclusion two years later, finding that evaluation of the fairness of a settlement entails a consideration of “the strength of plaintiffs’ case on the merits,” including “the risks of class decertification.” Adams Extract Co. v. Pleasure Hours, Inc. (In re Corrugated Container Antitrust Litig.), 643 F.2d 195, 216 (5th Cir.1981). Note the bizarre effect of these opinions: Certification criteria are designed in part to protect the class against inadequate representatives, but Beef Industry permits those very representatives to compromise the requirements. . Corrugated Container compounds the effect by holding that certification criteria are part of the merits of a class action. Thus, when it is less likely that certification is proper, and therefore more likely that an individual plaintiff has a right to prosecute his own action, a smaller settlement is necessary to extinguish that right. The majority is more subtle, finding that all class members have a common interest in reaching a settlement that includes certain terms. See maj. op. at 975. Even so, a generalized common interest is not a “question,[] of law or fact common to the class.” Fed.R.CivJP. 23(a)(2) (emphasis added). Similarly, the majority finds that the legal and remedial theories of the class representatives are typical of those of the class because all elass members (1) claim that “Fibreboard is liable in tort for damages incurred due to exposure to Fibreboard asbestos” and (2) possess a common interest in" }, { "docid": "20044354", "title": "", "text": "the proposed partial settlement and plan of distribution. On August 15, 1989 I heard oral argument on Alvarado’s and settling defendants’ Fed.R.Civ.P. 23(e) motion. For the sake of expediency, at the same hearing I took argument on the question whether to allow a contribution bar, and if a bar were allowed, the form of offset applicable against any liability assessed against non-settling defendants. I. CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS The propriety of conditional certification of a class for settlement purposes before a formal Fed.R.Civ.P. Rule 23 inquiry has not been addressed by the 10th Circuit Court of Appeals. Hence, I set forth my reasons for certification of the settlement class here. In the past, the creation of settlement classes before certification was disfavored. Courts voiced concern that the practice might be “inconsistent with the requirement [of Rule 23] that certification as a class action be determined ‘as soon as practicable after the commencement of the action.’ ” In re Franklin Nat’l Bank Securities Litig., 574 F.2d 662, modified, 599 F.2d 1109 (2nd Cir.1978). Commentators argued that this practice could foster collusion or improper pressure by defendants and, thus, recommended a firm prophylactic rule prohibiting the formation of settlement classes. Manual for Complex Litigation, § 1.46 (1977). However, as the volume and complexity of class actions increased, courts realized that such a blanket rule unduly inhibited settlement of class issues before class certification. In re Beef Indus. Antitrust Litig., 607 F.2d 167 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). The hallmark of Rule 23 is its flexibility to utilize class actions to best serve the ends of justice and to promote judicial efficiencies. Id. Also, Fed.R.Civ.P. 23 does not forbid the formation of such classes. Consequently, many jurisdictions now authorize settlement classes. See e.g. Weinberger v. Kendrick, 698 F.2d 61 (2nd Cir. 1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); In re Beef Indus., supra; In re First Commodity Corp. of Boston Custom Accounts Litig., 119 F.R.D. 301 (D.Mass.1987); Girsh v. Jepson, 521 F.2d 153 (3rd Cir.1975). Indeed, the" }, { "docid": "18763456", "title": "", "text": "suit, was untimely. We disagree. Although the district court should make its initial ruling on class certification “[a]s soon as practicable after the commencement of an action,” Fed.R.Civ.P. 23(c)(1), there is no set deadline by which the court must act. See Gore v. Turner, 563 F.2d 159, 165-66 (5th Cir.1977) (maintenance of class action possible even without explicit Rule 23(c)(1) determination); see also Chateau de Ville Productions, Inc. v. Tams-Witmark Music Library, Inc., 586 F.2d 962, 966 (2d Cir.1978) (precipitous action unnecessary). Part of the delay here is attributable to plaintiffs’ post-filing discovery efforts; we find no abuse in the court’s decision to await those results, see Gore, 563 F.2d 159; Huff v. N.D. Cass Co., 485 F.2d 710, 712-13 (5th Cir.1973). Still more delay resulted from the docket backlog in Brownsville, over which plaintiffs had no control. Especially in light of the unusually timely filing of this case, we do not find that defendants were unduly prejudiced by the delay. Last, defendants contest the adequacy of the class notice, claiming that it violates Rule 23(c)(2)’s requirement of “the best notice practicable under the circumstances.” There is no merit at all to this claim. The rule requires only that notice be mailed individually to “all class members whose names and addresses may be ascertained through reasonable effort.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173, 94 S.Ct. 2140, 2150, 40 L.Ed.2d 732 (1974); cf. In re Beef Industry Antitrust Litigation, 607 F.2d 167, 178-79 (5th Cir.1979) (stressing trial court’s great discretion over matters of notice and determination of class), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). By contrast, the court here not only required plaintiffs to mail individual notice in English and Spanish to all persons they could reasonably locate, it also ordered bilingual radio and newspaper announcements for a sixty-day period in the areas where class members were most likely to be found. In addition, over defendants’ objection, plaintiffs personally contacted as many class members as possible. Given the mobile, semi-literate character of the class, these efforts fully satisfied the dictates of Rule" }, { "docid": "23224119", "title": "", "text": "Section 1.46 of the Manual for Complex Litigation suggests that ordinarily, before any settlement negotiations occur, there should be a class action determination and that, if settlement has been negotiated before class action determination and the appointment of a class representative, the court must be doubly careful in evaluating the fairness of the settlement. Readers of this opinion, who do not have ready access to the Manual, will find the reasons for its Board of Editors’ recommendations set forth in the Appendix of In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 183-84. The recommendations contained in the Manual were of sufficient merit to warrant the district judge’s consid eration. See McDonald v. Chicago Milwaukee Corp., 565 F.2d 416, 420 (7th Cir. 1977); Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 33 (3d Cir. 1971). Because of the limited control exercisable by class members, class settlements are susceptible to abuse. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir.), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1978). “The interest of lawyer and class may diverge, as may the interests of different members of the class, and certain interests may be wrongfully compromised, betrayed, or ‘sold out’ without drawing the attention of the court.” Id.; see In re Beef Industry Antitrust Litigation, supra, 607 F.2d at 174. This is more likely to occur in a situation such as we have here, where the plaintiffs have negotiated to the verge of settlement before suit is brought and have then sued under Rule 23(b)(2), which requires no pre-certification notice to class members. In City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), upon which appellants heavily rely, the settlement agreement was reached after more than three years of litigation, in which discovery had been virtually completed, all preliminary motions had been disposed of, and a motion for class certification was pending. Id. at 453. See also, In re Beef Industry Antitrust Litigation, supra, 607 F.2d 167, where “settlement was achieved only after several years of pending litigation”, id." } ]

[ { "docid": "8073528", "title": "", "text": "jury may have disbelieved King’s testimony about the August 19 incident and based the entire verdict upon the protected conduct of March 4, 1980. Unlike some state courts, the federal courts do not assume that the jury decided all issues in the prevailing party’s favor. See Aquionics Acceptance Corp. v. Kollar, 503 F.2d 1225, 1227 (6th Cir.1974); Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383, 390 (6th Cir.1962), cert. denied, 372 U.S. 907, 83 S.Ct. 721, 9 L.Ed.2d 717 (1963). Thus, the verdict in this case cannot stand. Moreover, even if the jury accepted King’s version of what transpired on August 19, 1980, it still may have based part of its verdict on the immunized conduct of March 4, 1980. Since there is no assurance that the entire verdict was based upon Judge Love’s allegedly non-judicial conduct in procuring King’s arrest on August 19, 1980, the judgment must be vacated and the case remanded for a new trial. IV. Judge Love’s final argument is that no remand is necessary because the district court should have granted his motion for directed verdict. In view of our disposition of King’s claim regarding the March 4, 1980 incident, we consider this assignment of error only as to the claim involving the August 19, 1980 arrest. This court’s standard of review is identical to the standard used by the district court. See Hersch v. United States, 719 F.2d 873, 877 (6th Cir.1983). A motion for directed verdict should be granted only if, viewing the evidence and the inferences that reasonably may be drawn therefrom in the light most favorable to the party opposing the motion, there is “a complete absence of pleading or proof on an issue or issues material to the cause of action or ... there are no controverted issues of fact upon which reasonable men could differ.” Duncan v. City of Oneida, 735 F.2d 998, 999 (6th Cir.1984). See also Hersch, 719 F.2d at 876-77; Rockwell International Corp. v. Regional Emergency Medical Services of Northwest Ohio, Inc., 688 F.2d 29, 31 (6th Cir.1982). Under this standard, the" } ]

[ { "docid": "18765447", "title": "", "text": "have to be overturned. However, because Kitchen has not appealed this issue, and because the judge’s finding on the promotion claim favored the appellants, any error that may have occurred would not have prejudiced the appellants. The appellants also contend that the district court erred in submitting Kitchen’s § 1983 promotion claim to the jury after it had found that she had failed to make a prima facie showing of discrimination on her promotion claim under Title VII. We are not persuaded that this action was legally erroneous. The standard by which the judge determined whether Kitchen had established a prima facie case on her equitable claim is quite different from the standard by which he reviewed the appellants’ motion for a directed verdict on the legal claim. In determining whether a prima facie case was established under Title VII, the judge’s duty was to weigh and evaluate all of the evidence before him. Moreover, in evaluating this evidence, the judge could make no special inferences in the plaintiff’s favor. Conversely, when ruling on the defendants’ motion for a directed verdict on the § 1983, the judge could not weigh the evidence. See Hersch v. United States, 719 F.2d 873, 876-77 (6th Cir.1983) (court’s role as factfinder distinct from its role in deciding a motion for a directed verdict). Instead, he had to view the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmoving party. Grimm v. Leinart, 705 F.2d 179, 181 (6th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). A court can only grant a motion for a directed verdict “if there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controverted issues of fact upon which reasonable men could differ.” Rockwell International Corp. v. Regional Emergency Med. Serv., 688 F.2d 29, 31 (6th Cir.1982). If this standard is not met, the motion must be denied and the issue submitted to the jury. When viewed in this light, the actions of the district" }, { "docid": "16391559", "title": "", "text": "as a Matter of Law (1)If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against the party and may grant a motion for judgment as a matter of law against that party with respect to a claim ... that cannot under the controlling law be maintained ... without a favorable finding on that issue. When considering a motion for judgment as a matter of law based on insufficiency of the evidence, the court should not weigh the evidence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury; rather, it must view the evidence in a light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. K & T Enters. v. Zurich Ins. Co., 97 F.3d 171, 175-76 (6th Cir.1996); Aparicio v. Norfolk & Western RR Co., 84 F.3d 803, 806-07 (6th Cir.1996); Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 56 F.3d 726, 734 (6th Cir.1995). The motion should be granted “whenever there is a complete absence of pleading or proof on an issue material to the cause of action or when no disputed issues of fact exist such that reasonable minds would not differ.” Tuck v. HCA Health Servs., Inc., 7 F.3d 465, 469 (6th Cir.1993); accord, Aparicio, 84 F.3d at 806-07; Powers v. Bayliner Marine Corp., 83 F.3d 789, 796 (6th Cir.1996). Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the trial court has a gatekeeper function which requires an assessment of the admissibility of expert testimony. The court is to determine: whether the expert’s testimony reflects ‘scientific knowledge,’ whether their findings are ‘derived by the scientific method,’ and whether their work product amounts to ‘good science.’ Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (on remand), quoting, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579," }, { "docid": "6934641", "title": "", "text": "inferences. Lewis v. City of Irvine, Ky., 899 F.2d 451, 454-55 (6th Cir.1990). This court should affirm the granting of the motion “ ‘if there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controverted issues of fact upon which reasonable men could differ.’ ” Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1015 (6th Cir.1987) (quoting Rockwell Int’l Corp. v. Regional Emergency Med. Serv. of N.W. OH, Inc., 688 F.2d 29, 31 (6th Cir.1982)). A. Fourth Amendment Violation At trial, Hegarty, Ostapowicz, and other officers involved with the incident testified that O’Brien’s house was surrounded within minutes of O’Brien’s initial confrontation with Johnson and that there was no risk of his escaping unnoticed once the house was surrounded. Furthermore, according to the officers’ testimony, they were not concerned with the destruction of any contraband. Their goal was to disarm and, perhaps, to arrest O’Brien, without harm to officers, O’Brien, or innocent bystanders. The district court found that the defendants failed to demonstrate sufficient facts upon which a reasonable jury could find that exigent circumstances or any other reason existed to justify the warrantless search. The defendants argue that the district court erred in ruling as a matter of law that the three probes of O’Brien’s house violated the Fourth Amendment. According to the defendants, they thought they had probable cause to arrest O’Brien after he confronted Officer Johnson with the rifle, and the three warrantless probes were reasonable because the police were in “hot pursuit” of O’Brien, and because O’Brien had created exigent circumstances by barricading himself in the house. O’Brien argues that even if the police had probable cause to arrest him, the Fourth Amendment did not permit a warrantless search of his house absent exigent circumstances, and no exigent circumstances existed to justify the intrusion. The Fourth Amendment 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," }, { "docid": "7720426", "title": "", "text": "the second administration. Nonetheless, Brickers has maintained throughout that she both was and is unable to lift. Indeed, Brickers .testified, that on at least one occasion she nearly fell down the stairs in her house when her back pain proved so severe that she dropped a laundry basket full- of clothes. On September 29, 1992, the Board held a hearing to determine whether to terminate Brickers from her position as bus driver. The Board recommended termination and notified Brickers of its. decision on November 13, 1992. Brickers later filed a grievance through her union and won. However, the Board never reinstated her. After exhausting her administrative remedies through the EEOC, Brickers filed suit against the Board in 1996, alleging violations of the ADA, 42 U.S.C. §§ .12101-12213, the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796i, Ohio Rev.Code § 4112.99, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. She requested relief in the form of declaratory judgment, reinstatement, backpay, compensatory damages of $150,000, and costs and fees. - During trial in 1997, the district court granted judgment as a matter of law, holding that lifting was an essential function of a bus attendant’s job, and that an employer need not exempt an employee from performing an essential function in order to accommodate that employee’s disabilities. Because the sole accommodation Brickers requested was one for which she was not qualified, the court found that she had no right of action against the Board. II. In reviewing a motion for a judgment as a matter of law under Fed. R. Crv. P. 50, this court applies the same standard that the district court uses. Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1328 (6th Cir.1992). The court will therefore “consider[ ] the evidence in a light most favorable to the party against whom the motion is made, giving that party the benefit of all reasonable inferences.” Tuck v. HCA Health Servs. of Tennessee, Inc., 7 F.3d 465, 469 (6th Cir.1993). Accordingly, judgment as a matter of law will be proper where “there is no legally sufficient" }, { "docid": "121369", "title": "", "text": "Id. at 241-47 (Testimony of DeAngelis). She had been reprimanded previously and then suspended. On November 30, 1988, Danielson filed this suit alleging that she was terminated on the basis of her age, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. On June 18, 1990, a jury trial was commenced. The City stipulated that Danielson was replaced by a younger person outside of the protected age group. The district court reserved ruling on defendant’s Motion for Directed Verdict presented at the close of Daniel-son’s case. On June 20, 1990, after the close of the City’s case, the district court granted the motion in favor of the City. Danielson filed a timely notice of appeal on July 19, 1990. II. A. Our standard of review of motions for directed verdict is identical to the standard used by the district court. King v. Love, 766 F.2d 962, 969 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). We must view the evidence in a light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences. Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir.1987). The motion should be granted if there are “no controverted issues of fact upon which reasonable [people] could differ.” Id. We have held that we generally apply to ADEA age discrimination cases the same analysis applied to discrimination cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. according to McDonnel Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Chappell v. GTE Prods. Corp., 803 F.2d 261, 265 (6th Cir.1986). Under this analysis, plaintiff must first establish a prima facie case. The prima facie case creates a presumption of discrimination, which requires the defendant to articulate a legitimate, nondiscriminatory reasons for the dismissal. It is then the plaintiff’s burden to establish that discrimination was a determinative factor in the dismissal. Id. at 265. In an ADEA suit, a prima facie case is established if the plaintiff" }, { "docid": "9610514", "title": "", "text": "KEITH, Circuit Judge. Defendant-appellant, HCA Health Services of Tennessee, Inc. (hereafter, “defendant Hospital”), appeals the district court’s denial of its motion for a judgment as a matter of law in a jury trial on its state claim under the Tennessee Human Rights Act and in a bench trial under the Rehabilitation Act of 1973, 29 U.S.C. § 794. I. On March 27, 1991, plaintiff-appellee Tuck sued defendant Hospital, claiming defendant illegally discharged her because of her back disability. She claimed violations of 42 U.S.C. § 1983, section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Tennessee Human Rights Act, Tenn.Code Ann. §§ 8-50-103 and 4-21-101 et seq. On January 18, 1992, defendant Hospital filed a motion for summary judgment which the court took under advisement. The Tennessee Human Rights Act claim was tried before a jury on February 4-7, 1992. When Tuck closed her ease in chief, the district court denied the Hospital’s motion for judgment as a matter of law as to all of Tuck’s remaining claims. On February 7, 1992, the jury found for plaintiff Tuck, and against defendant Hospital, on plaintiffs state claim. The entry of judgment was deferred until June 3, 1992 when the district court entered a memorandum opinion in favor of plaintiff Tuck in regard to her section 504, Rehabilitation Act claim tried before the bench without a jury. The jury awarded Tuck $26,755.00 on her state claim. The district court further ordered defendant Hospital to reinstate Tuck, to pay her reasonable attorney fees and costs, and ordered the entry of the jury’s award of damages. On June 18, 1992, the district court denied defendant’s motion for judgment as a matter of law. On July 16,1992, the Hospital filed a timely notice of appeal. In 1979, plaintiff Tuck began working for defendant Hospital as a registered nurse. She worked as both a staff nurse and a charge nurse for various wards at the hospital. As a charge nurse for the orthopedic ward, she took reports concerning patients, made rounds with doctors, and assigned tasks and supervised the other nurses" }, { "docid": "6934640", "title": "", "text": "a motion for judgment as a matter of law against that party on any claim ... that cannot under the controlling law be maintained without a favorable finding on that issue. Fed.R.Civ.P. 50(a)(1). “Motions for judgment as a matter of law may be made at any time before submission of the case to the jury.” Fed.R.Civ.P. 50(a)(2). This court’s standard of review of a motion for judgment as a matter of law is identical to the standard used by the district court. Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir.1991); King v. Love, 766 F.2d 962, 969 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). Thus, when reviewing a motion for judgment as a matter of law, this court should not weigh the evidence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury; rather, this court must view the evidence in the light most favorable to the party against whom the motion is made and give that party the benefit of all reasonable inferences. Lewis v. City of Irvine, Ky., 899 F.2d 451, 454-55 (6th Cir.1990). This court should affirm the granting of the motion “ ‘if there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controverted issues of fact upon which reasonable men could differ.’ ” Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1015 (6th Cir.1987) (quoting Rockwell Int’l Corp. v. Regional Emergency Med. Serv. of N.W. OH, Inc., 688 F.2d 29, 31 (6th Cir.1982)). A. Fourth Amendment Violation At trial, Hegarty, Ostapowicz, and other officers involved with the incident testified that O’Brien’s house was surrounded within minutes of O’Brien’s initial confrontation with Johnson and that there was no risk of his escaping unnoticed once the house was surrounded. Furthermore, according to the officers’ testimony, they were not concerned with the destruction of any contraband. Their goal was to disarm and, perhaps, to arrest O’Brien, without harm to officers, O’Brien, or innocent bystanders. The district court found that the defendants" }, { "docid": "22986728", "title": "", "text": "for New Trial When reviewing a district court’s decision to grant or deny a motion for judgement as a matter of law, we apply the same standard as that used by the district court: the court should neither weigh the evidence, evaluate the credibility of the witnesses, nor substitute its judgment for that of the jury; rather it must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Agristor Leasing v. A.O. Smith Harvestore Products, 869 F.2d 264, 268 (6th Cir.1989). “Only when it is clear that reasonable people could come to but one conclusion from the evidence should a court grant a motion for directed verdict.” Lewis v. City of Irvine, 899 F.2d 451, 454-55 (6th Cir.1990); see also Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir.1991). We review the court’s denial of Defendants’ motion for a new trial only for abuse of discretion; the trial court should deny such a motion if the verdict is one that reasonably could be reached, regardless of whether the trial judge might have reached a different conclusion were he the trier of fact. United States v. L.E. Cooke Co., 991 F.2d 336, 343 (6th Cir.1993). An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. In re Bendectin Litigation, 857 F.2d 290, 307 (6th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989); Schrand v. Federal Pacific Electric Co., 851 F.2d 152, 156-57 (6th Cir.1988). The district court provided three separate rationales for directing a verdict in Plaintiffs’ favor on the issue of liability: first, that Sebring violated Plaintiffs’ procedural due process rights; second, that Sebring violated its own Loan Resolution; and third, that Sebring violated the Consolidated Farm and Rural Development Act, 7 U.S.C. § 1921 et seq. If we agree with even one of these rationales, we are obliged to affirm. 1. Procedural Due Process Because we agree with the district court’s rationales based on statutory law, it is" }, { "docid": "22356939", "title": "", "text": "case along. According to Gafford, the court inteijected itself often in the trial, thus creating an “atmosphere of haste.” Gafford’s Br. at 23. Upon review of the record, it appears that the trial court’s demeanor did not deny Gaf-ford a fair trial. Most of the interjections were generally outside the presence of the jury. They were made to both parties, and were largely attempts to avoid cumulative evidence. Gafford’s argument here is without merit. VII Though Gafford’s Brief is often difficult to comprehend, she seems to argue that the district court erred by granting a directing verdict for GE on the matter of whether GE discriminated against her in eventually hiring a man for the vacant Manager position. Cf. Gafford’s Reply Br. at 18 (“As to the directed verdict on the Kendle manager position, there were sufficient facts in the record to allow the jury to decide the case. Clearly there was a prima facie case of dissemination [sic]_”). We find that the directed verdict on this issue was not improper. This court’s standard of review of motions for directed verdict is identical to the standard used by the district court. See Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1328 (6th Cir.1992). “In federal court diversity cases, this circuit adheres to the minority rule that state law governs the standard for granting motions for directed verdicts and judgments notwithstanding the verdict.” J.C. Wyckoff & Assocs. v. Standard Fire Ins. Co., 936 F.2d 1474, 1482 (6th Cir.1991); see also Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 955 F.2d 1043, 1050 (6th Cir.1992); O’Neal v. Burger Chef Sys., Inc., 860 F.2d 1341, 1347 (6th Cir.1988); Warkentien v. Vondracek, 633 F.2d 1, 6 (6th Cir.1980). In Borg-Warner, we accepted the following portrayal of the Kentucky standard governing directed verdicts: The only question to be determined by the court on a motion for directed verdict is whether the plaintiff has sustained the burden of proof by “more than a scintilla of evidence,” that is, has the plaintiff submitted “evidence of probative value having fitness to induce conviction in the minds of reasonable men?”" }, { "docid": "5239020", "title": "", "text": "motions for directed verdict by the appellate court is the same as the standard used by the district court. King v. Love, 766 F.2d 962, 967 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). When reviewing a motion for directed verdict, this court should not weigh the evidence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury; rather, it must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Lewis v. Irvine, 899 F.2d 451, 454-55 (6th Cir.1990). The motion should be granted “if there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controversial issues of fact upon which reasonable men could differ.” Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir.1987) (quoting Rockwell Int’l Corp. v. Regional Emerg. Med. Serv., 688 F.2d 29, 31 (6th Cir.1982)). In a diversity action such as this one, we apply ... the standard for a directed verdict used by the courts of the state whose substantive law governs the action. Tennessee courts require that a trial court presented with a motion for directed verdict must, take the strongest legitimate view of the evidence in favor of the opponent of the motion, allow all reasonable inferences in his or her favor, discard all countervailing evidence, and deny the motion where there is any doubt as to the conclusions to be drawn from the whole evidence. A verdict should not be directed during, or after, trial except where a reasonable mind could draw but one conclusion. In both the Tennessee and federal court systems, an appellate court reviewing a trial court’s action on a directed verdict motion applies the same standard as used in the trial court. Arms v. State Fire & Casualty Co., 731 F.2d 1245, 1248-49 (6th Cir.1984) (citations and footnote omitted). The only theory of liability relating to Liquid Air was an inadequacy of warning" }, { "docid": "5239019", "title": "", "text": "sound discretion. Finch v. Monumental Life Ins. Co., 820 F.2d 1426, 1432 (6th Cir.1987). Since the film contained no information not already before the jury, the judge’s omission of the film was not an abuse of discretion. There is nothing improper in the court’s making a subjective determination that the film would be prejudicial; subjectivity is an inherent part of discretionary determinations. There is no indication that the court’s reaction was idiosyncratic. There is an obvious possibility of prejudice from a dramatic film that resembles, but does not depict, the accident in question. The court was in a far better position than we are to weigh the prejudice against the probative value, as required by Rule 403. The plaintiffs have presented no compelling reasons why the film should be admitted or its omission ruled an abuse of judicial discretion. We affirm the district judge’s evi-dentiary ruling to exclude the film from evidence. Ill Finally, we hold that co-defendant Liquid Air was wrongly denied a directed verdict by the trial court. The standard of review of motions for directed verdict by the appellate court is the same as the standard used by the district court. King v. Love, 766 F.2d 962, 967 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). When reviewing a motion for directed verdict, this court should not weigh the evidence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury; rather, it must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Lewis v. Irvine, 899 F.2d 451, 454-55 (6th Cir.1990). The motion should be granted “if there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controversial issues of fact upon which reasonable men could differ.” Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir.1987) (quoting Rockwell Int’l Corp. v. Regional Emerg. Med. Serv., 688 F.2d 29, 31 (6th Cir.1982)). In" }, { "docid": "9610522", "title": "", "text": "law should be granted whenever there is a complete absence of pleading or proof on an issue material to the cause of action or when no disputed issues of fact exist such that reasonable minds would not differ. Id., citing Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir.1987). Defendant Hospital contends that Appellee Tuck failed to establish a prima facie case under Tenn.Code Ann. § 8-50-103. The code reads in part: [tjhere shall be no discrimination in the ... firing ... by any private employer against any applicant for employment based solely upon any physical handicap of the applicant, unless such handicap to some degree prevents the applicant from performing the duties required by the employment sought or impairs the performance of the work involved. Tenn.Code Ann. § 8-50-103(a) (Supp.1992) (emphasis added). In order to establish a prima facie case of handicap discrimination under T.C.A. § 8-50-103, a plaintiff is thus required to show (1) that she has a handicap, and (2) that she can actually do the work or is “otherwise qualified” to do the work notwithstanding her handicap. Once the plaintiff has established her prima facie case, the burden then shifts to the defendant employer to show that its job requirements and standards are bona fide occupational requirements. Abraham v. Cumberland-Swan, Inc., slip op., No. 90CV-1064 at 13-14, 1992 WL 207775 (Tenn.Ct. App. Aug. 28, 1992). As mandated by the plain language of T.C.A. § 8-50-103, discrimination based on handicap is not actionable if the handicap “to some degree prevents the applicant [or employee] from performing the duties required by the employment sought or impairs the performance of the work involved.” Defendant relies on Abraham to argue that plaintiff admitted she was physically unable to perform the essential duties of her assigned employment and therefore cannot establish a prima facie case. In Abraham, the plaintiff, admitted that her physical limitations “impaired and prevented her from performing the duties required” of her employment position. Abraham, slip op. at 14. According to the court, the plaintiff could not establish a prima facie case under the plain language" }, { "docid": "5579959", "title": "", "text": "the denial of the summary judgment motion “is ‘not properly reviewable on an appeal from the final judgment entered after trial.’ ” Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.1990) (quoting Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1358 (9th Cir.1987)). Although it may be unjust to deny a summary judgment motion improperly, “ ‘it would be even more unjust to deprive a party of a jury verdict after the evidence was fully presented, on the basis of an appellate court’s review of whether the pleadings and affidavits at the time of the summary judgment motion demonstrated the need for a trial.’ ” Id. at 1016 n. 1 (quoting Locricchio, 833 F.2d at 1359). After the plaintiffs’ evidence had been fully presented in the case at bar, as we have seen, the A.G, Carriers defendants moved unsuccessfully for judgment as a matter of law. In considering the propriety of the magistrate’s ruling on this issue, we are constrained to use the same standard that a court of the forum state would apply under that state’s law. See K & T Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 176 (6th Cir.1996). Under Kentucky law, a motion for a directed verdict — the same thing as a motion for judgment as a matter of law under Rule 50, Fed.R.Civ.P. — should be granted only if “there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable minds could differ.” Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.App.1992). In deciding such a question, “every favorable inference which may reasonably be drawn from the evidence should be accorded the party against whom the motion is made.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 125 (Ky.1991). Under the Kentucky standard, we are satisfied that the A.G. Carriers defendants were not entitled to judgment as a matter of law. Considering the trial record as a whole, we believe that reasonable minds could differ as to whether the A.G. Carriers truck was following the J.B. Hunt truck too" }, { "docid": "22356940", "title": "", "text": "review of motions for directed verdict is identical to the standard used by the district court. See Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1328 (6th Cir.1992). “In federal court diversity cases, this circuit adheres to the minority rule that state law governs the standard for granting motions for directed verdicts and judgments notwithstanding the verdict.” J.C. Wyckoff & Assocs. v. Standard Fire Ins. Co., 936 F.2d 1474, 1482 (6th Cir.1991); see also Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 955 F.2d 1043, 1050 (6th Cir.1992); O’Neal v. Burger Chef Sys., Inc., 860 F.2d 1341, 1347 (6th Cir.1988); Warkentien v. Vondracek, 633 F.2d 1, 6 (6th Cir.1980). In Borg-Warner, we accepted the following portrayal of the Kentucky standard governing directed verdicts: The only question to be determined by the court on a motion for directed verdict is whether the plaintiff has sustained the burden of proof by “more than a scintilla of evidence,” that is, has the plaintiff submitted “evidence of probative value having fitness to induce conviction in the minds of reasonable men?” In so ruling, “The court must draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and a verdict should not be directed unless the evidence is insufficient to sustain the verdict. The evidence of such party’s witnesses must be accepted as true.” It is well settled that circumstantial evidence “will authorize a submission of the contested issue to the jury,” and is capable of sustaining its verdict. 955 F.2d at 1050 (quoting Grant v. Wrona, 662 S.W.2d 227, 229 (Ky.Ct.App.1983) (citations omitted)); see also Wyant v. SCM Corp., 692 S.W.2d 814, 816 (Ky.Ct.App.1985). Given this standard of review, and upon thorough review of the record, we agree with the district court that the claim relating to the Manager position should not have been submitted to the jury. VIII Finally, Gafford contends that the district court erred by not granting her motion for a new trial. ... In a diversity ease, the question of whether a new trial is to be granted is a federal procedural question and" }, { "docid": "9610520", "title": "", "text": "in her left foot. She could not lift patients, push patients in a stretcher, bend over patients, nor help patients into or out of a bathtub. This prompted Ms. Parrish to accept the clinical coordinator’s recommendation to terminate Appel-lee Tuck’s position within PCU even though she had not completed eight weeks in the restricted duty program as recommended by her doctor. Having found no other positions available for which Tuck was qualified, Ms. Parrish terminated plaintiff on March 27, 1990 following Tuck’s completion of her 12 hour evening shift on the PCU ward. According to the termination interview form, plaintiff Tuck was “unable to perform expeet- ed staff nurse duties on progressive care due to her inability to do any lifting or pushing or to walk the length of the hall ‘due to pain in her leg.’ ”. Within four months of being terminated, plaintiff Tuck secured a job with Cloverbot-tom Developmental Center in a supervisory capacity, a position that allegedly requires as much or more manual labor than required on the PCU ward. She has performed these tasks “competently and adequately.” II. Defendant Hospital first contends that the district court erred by submitting Tuck’s state claim to the jury because she did not establish a prima facie ease under the Tennessee Human Rights Act. Defendant Hospital questioned the propriety of the district court’s sending the state claim to the jury and filed a motion for judgment as a matter of law. An appellate court’s standard of review of a motion for judgment as a matter of law is the same as the standard the district court uses. Hunt v. Coynes Cylinder Co., 956 F.2d 1319, 1328 (6th Cir.1992), citing King v. Love, 766 F.2d 962, 967 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). A district court considers the evidence in a light most favorable to the party against whom the motion is made, giving that party the benefit of all reasonable inferences. Id., citing Lewis v. Irvine, 899 F.2d 451, 454-55 (6th Cir.1990). A motion for a judgment as a matter of" }, { "docid": "9610521", "title": "", "text": "has performed these tasks “competently and adequately.” II. Defendant Hospital first contends that the district court erred by submitting Tuck’s state claim to the jury because she did not establish a prima facie ease under the Tennessee Human Rights Act. Defendant Hospital questioned the propriety of the district court’s sending the state claim to the jury and filed a motion for judgment as a matter of law. An appellate court’s standard of review of a motion for judgment as a matter of law is the same as the standard the district court uses. Hunt v. Coynes Cylinder Co., 956 F.2d 1319, 1328 (6th Cir.1992), citing King v. Love, 766 F.2d 962, 967 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). A district court considers the evidence in a light most favorable to the party against whom the motion is made, giving that party the benefit of all reasonable inferences. Id., citing Lewis v. Irvine, 899 F.2d 451, 454-55 (6th Cir.1990). A motion for a judgment as a matter of law should be granted whenever there is a complete absence of pleading or proof on an issue material to the cause of action or when no disputed issues of fact exist such that reasonable minds would not differ. Id., citing Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir.1987). Defendant Hospital contends that Appellee Tuck failed to establish a prima facie case under Tenn.Code Ann. § 8-50-103. The code reads in part: [tjhere shall be no discrimination in the ... firing ... by any private employer against any applicant for employment based solely upon any physical handicap of the applicant, unless such handicap to some degree prevents the applicant from performing the duties required by the employment sought or impairs the performance of the work involved. Tenn.Code Ann. § 8-50-103(a) (Supp.1992) (emphasis added). In order to establish a prima facie case of handicap discrimination under T.C.A. § 8-50-103, a plaintiff is thus required to show (1) that she has a handicap, and (2) that she can actually do the work or is “otherwise" }, { "docid": "22441062", "title": "", "text": "Quoting Quanex’s brief, the district court also stated that incidents used to establish a hostile environment “must be within the limitations period” and “must be reported.” (J.A. at 2265.) Furthermore, with respect to the two incidents the district court credited as viable evidence of racial harassment, the district court found that management dealt with them promptly and appropriately. Jackson filed a timely notice of appeal to this Court on April 29,1998. II. This Court reviews de novo a district court’s decision to grant judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. See Monday v. Oullette, 118 F.3d 1099, 1101-02 (6th Cir.1997). In reviewing the decision, we must consider the evidence in the light most favorable to the nonmovant, giving that party the benefit of all reasonable inferences. See Tuck v. HCA Health Servs. of Tenn., 7 F.3d 465, 469 (6th Cir.1993). Accordingly, when faced with a Rule 50(a) motion, a district court may not weigh the evidence or make credibility determinations, as these are jury functions. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990). A dismissal pursuant to Rule 50(a) is improper where the nonmovant presented sufficient evidence to raise a material issue of fact for the jury. See Sawchik v. E.I. DuPont Denemours & Co., 783 F.2d 635, 636 (6th Cir.1986) (citing O’Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir.1975)). In other words, the decision to grant judgment as a matter of law or to take the case away from the jury is appropriate “whenever there is a complete absence of pleading or proof on an issue material to the cause of action or when no disputed issues of fact exist such that reasonable minds would not differ.” Id. Judgment as a matter of law pursuant to Rule 50(a) is appropriate only where “a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue.” Fed.R.Civ.P. 50(a)(1). The" }, { "docid": "7720427", "title": "", "text": "trial in 1997, the district court granted judgment as a matter of law, holding that lifting was an essential function of a bus attendant’s job, and that an employer need not exempt an employee from performing an essential function in order to accommodate that employee’s disabilities. Because the sole accommodation Brickers requested was one for which she was not qualified, the court found that she had no right of action against the Board. II. In reviewing a motion for a judgment as a matter of law under Fed. R. Crv. P. 50, this court applies the same standard that the district court uses. Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1328 (6th Cir.1992). The court will therefore “consider[ ] the evidence in a light most favorable to the party against whom the motion is made, giving that party the benefit of all reasonable inferences.” Tuck v. HCA Health Servs. of Tennessee, Inc., 7 F.3d 465, 469 (6th Cir.1993). Accordingly, judgment as a matter of law will be proper where “there is no legally sufficient evidentiary basis for a reasonable jury to find for [the non-moving] party on that issue, [or where] a claim or defense ... cannot under the controlling law be maintained or defeated without a favorable finding on that issue.” Fed. R. Civ. P. 50(a). III. Brickers argues that the district court erroneously found that lifting was an essential function of the position of school bus attendant. In order to make out a prim a facie case of employment discrimination on the basis of a disability, a claimant must establish that: “1) he is an individual with a disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap.” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.1996). See also 42 U.S.C. § 12112(a) (setting forth the general prohibition against discrimination on the basis of disability). An “otherwise qualified” individual is one who, “with or without reasonable accommodation, can perform the essential functions of the employment position that" }, { "docid": "22986727", "title": "", "text": "water service on the basis of the Loan Resolution; and (3) Plaintiffs are also entitled to continued water service pursuant to 7 U.S.C. § 1926. The court enjoined Sebring from discontinuing water service to Plaintiffs’ properties so long as Plaintiffs and their successors and assigns comply with all lawful rules and regulations regarding the receipt of water service. Perhaps due to an oversight, the court did not include sewer service within the injunction, nor did it otherwise discuss sewer service. The court submitted the question of damages to the jury, which returned a verdict for $55,600. Subsequently, the court awarded Plaintiffs $81,797.56 in attorney fees pursuant to 42 U.S.C. § 1988. This was far less than Plaintiffs’ counsel requested; the court disallowed much of the time claimed due to excessiveness, duplication and limited success, and reduced the hourly rate based on the court’s understanding of prevailing local market rates. The court also denied the individual defendants’ application for attorney fees. This appeal followed. II. Discussion A. Motions for Judgment as a Matter of Law, and for New Trial When reviewing a district court’s decision to grant or deny a motion for judgement as a matter of law, we apply the same standard as that used by the district court: the court should neither weigh the evidence, evaluate the credibility of the witnesses, nor substitute its judgment for that of the jury; rather it must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Agristor Leasing v. A.O. Smith Harvestore Products, 869 F.2d 264, 268 (6th Cir.1989). “Only when it is clear that reasonable people could come to but one conclusion from the evidence should a court grant a motion for directed verdict.” Lewis v. City of Irvine, 899 F.2d 451, 454-55 (6th Cir.1990); see also Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir.1991). We review the court’s denial of Defendants’ motion for a new trial only for abuse of discretion; the trial court should deny such a motion if the verdict" }, { "docid": "22464824", "title": "", "text": "verdict. See K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 176 (6th Cir.1996). Thus, because this is a diversity ease and Defendants’ Rule 50 motion challenges the sufficiency of the evidence, we apply the standard of review used by the courts of the state whose substantive law governs the action. See Brocklekurst v. PPG Indus., Inc., 123 F.3d 890, 894 (6th Cir.1997). This action is governed by Kentucky substantive law; therefore, the applicable standard of review is as follows: Under Kentucky law, a motion for a directed verdict — the same thing as a motion for judgment as a matter of law under Rule 50, Fed.R.Civ.P. — should be granted only if “there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable minds could differ.” Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.App.1992). In deciding such a question, “every favorable inference which may reasonably be drawn from the evidence should be accorded the party against whom the motion is made.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 125 (Ky.1991). Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219, 231 (6th Cir.1997). Defendants also challenge the district court’s denial of their motion for a new trial made pursuant to Fed.R.Civ.P. 59, on the basis that the verdict was against the great weight of the evidence. “We review a denial of a motion for a new trial for an abuse of discretion.” Anchor v. O’Toole, 94 F.3d 1014, 1021 (6th Cir.1996) (citing Gafford v. General Elec. Co., 997 F.2d 150, 171 (6th Cir.1993)). “In diversity cases, we apply federal law in reviewing a denial of a motion for a new trial, ‘[a]nd, in reviewing a trial court’s denial of a new trial motion on the ground that the verdict is against the clear weight of the evidence, we accept the jury’s verdict if it was reasonably reached.’ ” Ridgway v. Ford Dealer Computer Servs., Inc., 114 F.3d 94, 98 (6th Cir.1997) (quoting Anchor, 94 F.3d at 1021). Defendants claim that Plaintiffs failed" } ]

[ { "docid": "22670083", "title": "", "text": "conclude that the visa petition or the adjustment of status will ultimately be denied”). b. The BIA Acted Within Its Discretion in Denying Reconsideration Show Yung Guo asks this court to review the BIA’s denial of her motion to reconsider its August 2, 2007 denial of her motion to reopen. A motion to reconsider must specify errors of fact or law in the challenged BIA decision and must be supported by pertinent authority. See 8 C.F.R. § 1003.2(b); Khan v. Gonzales, 495 F.3d 31, 36 (2d Cir.2007). We review the denial of a motion to reconsider for abuse of discretion. Id. We identify none in this case because Show Yung Guo’s motion did not point to errors of fact or law; it simply repeated arguments about changed country conditions, perceived violations of population control policies, and the reasonable possibility of forced sterilization on removal that the BIA had already rejected. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) (holding that petitioner cannot secure reconsideration simply by repeating “arguments that the BIA has previously rejected”). To the extent petitioner pointed to additional evidence obtained on the Internet to support her arguments, we cannot conclude that the BIA committed an error of fact based on evidence that was not part of the record at the time of the ruling. As the BIA observed, petitioner failed to explain why this additional evidence was not submitted at the time of the 2006 remand. See In re Show Yung Guo, [ A XX XXX XXX ] (B.I.A. Feb. 27, 2008). In any event, the BIA reviewed the additional evidence and determined that it was no more persuasive than that previously considered at the violation or enforcement steps of analysis. Because we identify no abuse of discretion in the BIA’s denial of Show Yung Guo’s motion for reconsideration, we deny this much of her petition for review for lack of merit. III. Conclusion To summarize, we conclude: (1) Because the BIA found wide variances in how population control policies are understood and enforced throughout China, it reasonably concluded that the “well-founded fear”" } ]

[ { "docid": "22340327", "title": "", "text": "the underlying relief sought and present materi al, previously unavailable evidence. Without further explaining his reasoning, the IJ denied Alrefae’s motion to reopen. Alrefae appealed the IJ’s decision, and on June 2, 2004, the BIA affirmed without opinion. Alrefae filed a motion under 28 U.S.C. § 2241 in the United States District Court for the Western District of New York, seeking review of the BIA’s order. This petition was transferred to this Court as a petition for review pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a), 119 Stat. 231, 311 (codified at 8 U.S.C. § 1252) (“REAL ID Act”). See Order, Alrefae v. Ridge, No. 04-cv-0449 (W.D.N.Y. June 24, 2005) (Docket Entry No. 12). DISCUSSION Where, as here, the BIA affirms an IJ’s decision without opinion, we review the decision of the IJ as the final agency determination. Tu Lin v. Gonzales, 446 F.3d 395, 398 (2d Cir.2006). We review the denial of a motion to reopen for abuse of discretion, which may be found if the decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir.2006) (internal quotation marks omitted). We note at the outset that we, unlike the parties, construe Alrefae’s motion to rescind the in absentia removal order and to reopen proceedings on the basis of new evidence as comprising two distinct motions, which we review under different substantive standards. As we recently explained, although a motion to rescind is a type of motion to reopen, it is distinctive in that a “motion to reopen for purposes of rescinding an in absentia [removal] order ... seeks to restart proceedings as if the previous proceedings never occurred.” Maghradze v. Gonzales, 462 F.3d 150, 152 n. 1 (2d Cir.2006). Because “[d]ifferent requirements pertain to each type of motion to reopen,” id., when an alien files a single motion, that seeks both rescission of an in absentia removal order on an enumerated ground, see 8 U.S.C. § 1229a(b)(5)(C), as well as reopening" }, { "docid": "22779221", "title": "", "text": "June 5, 2002, the petitioner filed with the BIA a timely motion to reconsider. On October 10, 2002, in another per curiam order, the agency acknowledged the petitioner’s request that the BIA “not penalize [him] for the Airborne error which caused the delay in the submission of [his] appeal.” In re Zhong Guang Sun, No. [ AXX-XXX-XXX ], slip op. at 1 (B.I.A. Oct. 10, 2002) (per curiam). It denied the motion, however, stating: We note that a notice of appeal must be received at the Board within 30 days from the date of the Immigration Judge’s decision (or mailing date of the decision if later). See 8 C.F.R. § 3.38(b)[.] A date-stamp is placed on all filings received at the Clerk’s Office, and is controlling in the computation of timely filing. We note also, that the regulations set strict deadlines for the filing of an appeal, and the Board does not have the authority to extend the time in which to file a Notice of Appeal. See 8 C.F.R. § 3.38(b). Accordingly, the motion to reconsider is denied. Id. (emphasis added). Sun petitions this Court for review of the BIA’s October 10 order. Although he also asserts in his petition that he established a well-founded fear of persecution entitling him to asylum and withholding of removal, our review of the BIA’s order is limited to the question whether the BIA abused its discretion in denying, as barred by applicable regulations containing time limitations, Sun’s motion to reconsider its dismissal of his appeal. DISCUSSION I. Standard of Review We review for abuse of discretion the BIA’s denial of a motion to reconsider. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002); Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.1999) (applying the abuse of discretion standard to a motion to reopen). In doing so, “[w]e review the BIA’s underlying conclusions of law de novo, with the caveat that the BIA’s interpretations of ambiguous provisions of the [Immigration and Nationality Act] are owed substantial deference unless ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Id. (quoting Chevron, U.S.A., Inc." }, { "docid": "12006542", "title": "", "text": "this court. In September 2006, Habchy argued before this court that the BIA erred in affirming the IJ’s denial of the motion to reconsider and further erred in refusing to reopen his asylum case on the basis of changed country conditions. In Habchy v. Gonzales, 471 F.3d 858 (8th Cir.2006), this court affirmed the BIA’s denial of both motions. We noted therein, however, that nothing precluded Habchy from filing another motion to reopen based on further changes in country conditions due to the ongoing Lebanese — Israeli conflict. Id. at 867-68. Following this court’s decision, on September 17, 2007, Habchy filed with the BIA another motion to reopen based on changed country conditions. This new motion was premised, in part, on the military conflict between Lebanon and Israel in July and August of 2006. As a Lebanese Christian and perceived supporter of Israel, Habchy claimed that the escalation of tensions between Hizballah, Israel, and the Lebanese government over the kidnapping of Israeli soldiers in July 2006 increased the threat of persecution to a degree that constituted a material change and warranted reopening his asylum proceedings. On October 4, 2007, the BIA denied the motion on the merits. An appeal from the BIA’s denial of this latest motion is currently before this court. II. A. Standard of Review We review the BIA’s denial of a motion to reopen for abuse of discretion. Habchy, 471 F.3d at 861. The BIA abuses its discretion where “a decision is without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim.” Id. at 861-62 (citation and quotation omitted). The Code of Federal Regulations dictates when the agency may grant a motion to reopen. See 8 C.F.R. § 1003.2. To qualify for a motion to reopen based on changed circumstances, the petitioner must “state ... new facts ... supported by affidavits or other evidentiary material,” and the facts must be material to the claim for relief and unavailable and undiscoverable at the" }, { "docid": "23241563", "title": "", "text": "perceive that it has heard and thought and not merely reacted.” Kipkemboi v. Holder, 587 F.3d 885, 891 (8th Cir.2009) (quoting Rodriguez-Rivera v. INS, 993 F.2d 169,170 (8th Cir.1993) (per curiam)). We have also held that “[i]t is not necessary for the BIA to list every possible positive and negative factor in its decision,” Rodriguez-Rivera, 993 F.2d at 170-71, and that the BIA has “no duty to write an exegesis on every contention,” Barragan-Verduzco v. INS, 777 F.2d 424, 426 (8th Cir.1985) (quoting Osuchukwu v. INS, 744 F.2d 1136, 1142 (5th Cir.1984)). Moreover, “the Board is entitled to a presumption of regularity.” Makonnen v. INS, 44 F.3d 1378, 1384 (8th Cir.1995) (citation and internal quotation marks omitted); see also Kamara v. Att’y Gen. of U.S., 420 F.3d 202, 212 (3d Cir.2005) (“Agency action is entitled to a presumption of regularity, and it is the petitioner’s burden to show that the BIA did not review the record when it considered the appeal.”). In this case, Averianova’s motion to reopen was number-barred, but she argued to the BIA that it should consider her motion based on her evidence of changed circumstances. The BIA specifically concluded that Averianova did not demonstrate changed conditions in Uzbekistan, so it denied her motion to reopen. “While the BIA must consider ... evidence [of changed circumstances], it may do so in summary fashion without a reviewing court presuming that it has abused its discretion.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). Because Averianova “has failed to come forth with any facts showing that the BIA ... [made] its decision without” adequately considering her evidence of changed circumstances in Uzbekistan, we cannot conclude that the BIA abused its discretion or violated her due process rights when it denied her motion to reopen. See Rodriguez-Rivera, 993 F.2d at 171; see also Albathani v. INS, 318 F.3d 365, 379 (1st Cir.2003) (suggesting that summary affirmance by the BIA does not “establish that the required review is not taking place”); Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991) (“[T]he burden is on the petitioners to convince" }, { "docid": "19984985", "title": "", "text": "conditions. The BIA also affirmed the IJ’s denial of relief under the CAT. DISCUSSION “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (internal quotation marks omitted). We review the BIA’s factual findings, including the agency’s consideration of relevant evidence of country conditions, under the substantial evidence standard. See Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). However, “when the situation presented is the BIA’s application of legal principles to undisputed facts, ... our review is de novo.” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal quotation marks omitted). I. Past Persecution Under the Immigration and Nationality Act (“INA”), a petitioner is eligible for asylum at the discretion of the Attorney General if he demonstrates that he suffered past persecution or has a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 U.S.C. §§ 1101(a)(42), 1158; see also Xiu Fen Xia v. Mukasey, 510 F.3d 162, 165 (2d Cir.2007). A petitioner is also eligible for withholding of removal if he demonstrates a clear probability of persecution on account of a statutorily-protected ground. See 8 U.S.C. § 1231(b)(3). Statutorily-protected grounds include “political opinion” and “membership in a particular social group.” In dismissing Baba’s appeal, the BIA agreed with the IJ’s finding that “the incidents complained of did not rise to the level of persecution.” In re Biyalo Watara Baba, No. [ A XX XXX XXX ], at 1 (B.I.A. Dec. 14, 2007). Baba contends that this ruling was in error. We agree. The term persecution is not defined in the INA. The BIA has defined persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir.2008) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 222-23 (B.I.A. 1985)). This court has on several occasions considered the question" }, { "docid": "22451588", "title": "", "text": "to documents that this Court found material in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006):(1) a family planning leaflet from Tin Jian Town in Fujian Province and (2) the October 2005 State Department report, “China: Profile of Asylum Claims and Country Conditions.” The leaflet, entitled “Teaching of the Basic Knowledge of Population and the Family Planning,” is in a question and answer format and is dated “In Year 1999.” Question 9 reads: Under the regulation of our province, what contraceptive measure needs to be taken after giving birth to one child and what measure needs to be taken after giving birth to two children or more? A: One child, IUD insertion; two children, sterilization. The 2005 State Department report notes that, in general, Chinese citizens who give birth to children in the United States are not afforded any special treatment under the family planning laws upon their return to China. It appears that neither of these documents was available at the time of Gao’s hearing before the IJ. The BIA denied Gao’s motion to reopen on September 22, 2006, finding that it was untimely and that Gao did not qualify for an exception to the timeliness requirement because he had not shown changed circumstances arising in his country of nationality under 8 C.F.R. § 1003.2(c)(3)(h). The BIA did not specifically address the documents Gao submitted to show changed country conditions, merely stating: “In addition, none of the background information submitted with the motion specifically mentions respondent by name.” We review the denial of a motion to reopen for abuse of discretion. Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). While the BIA need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” as long as it “has given reasoned consideration to the petition, and made adequate findings,” Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir.2006) (internal quotation marks omitted), we have repeatedly stated that “[djespite the agency’s discretion ... ’ IJs and the BIA have a duty" }, { "docid": "19347197", "title": "", "text": "The letter said Xiu Lin would be sterilized if she returned to China with her American-born children. She also submitted letters from two women who said they were sterilized when they returned to China after giving birth to children abroad. Xiu Lin’s evidence also included an Amnesty International report and news articles documenting the mass sterilization of people in Puning County, Guangdong Province, China in April and September 2010 to meet local birth control quotas. These reports did not address changes to enforcement of the one-child policy in Fujian Province, where Xiu Lin is from. The BIA denied Xiu Lin’s motion to reopen in a detailed decision on July 31, 2013. The BIA found that Xiu Lin had not shown that the unauthenticated documents from China were genuine or reliable. Re-latedly, the BIA found there was insufficient evidence that Xiu Lin would likely suffer mistreatment or economic harm amounting to persecution based on the birth of her son in China and two Ameri can-born daughters. Finally, the BIA concluded Xiu Lin’s evidence was insufficient to establish a material change in country conditions so as to exempt her second motion from the requirements that she file only one motion to reopen within ninety days of the BIA’s 2005 final decision in her removal proceedings. It also declined to sua sponte reopen her proceedings. II. Motions to reopen are disfavored given the public interest in the prompt conclusion of removal proceedings. Perez v. Holder, 740 F.3d 57, 61 (1st Cir.2014). As a result, the BIA has considerable latitude in deciding those motions. See Perera v. Holder, 750 F.3d 25, 28-29, 2014 WL 1613670, at *3 (1st Cir. Apr. 22, 2014). We review the BIA’s decision under the “highly deferential” abuse of discretion standard. Id. (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.2005)). We uphold the BIA’s decision “unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.” Perez, 740 F.3d at 61-62 (quoting Liu v. Holder, 727 F.3d 53, 56 (1st Cir.2013)). It is undisputed" }, { "docid": "22613253", "title": "", "text": "is hereby ordered that you must persuade your husband Zheng Qin Wen immediately stopping his asylum application in overseas, coming back to China and surrendering himself to the government to obtain a lenient treatment. Otherwise, he will be severely punished if he is arrested. The Notice was supported solely, and only to some extent, by an affidavit from Zheng’s wife. Also translated from Chinese to English, the affidavit rehearses the underlying assertions of Zheng’s asylum application. The affidavit also attempts to provide further context to the local government’s crackdown against Chinese citizens who apply for asylum elsewhere, and generally reiterates the message and substance of the Notice. It does not include any reference to the Notice. The BIA Opinion The BIA was unpersuaded by Zheng’s submission. See In re Qin Wen Zheng, No. [ A XX XXX XXX ] (B.I.A. Oct. 18, 2005) (per curiam). “Much of the evidence now presented, including the wife’s affidavit and background material,” it said, “was not previously unavailable or is not new.... The new country reports have not been highlighted.... ” Id. The BIA continued: “[T]he purported notice from the respondent’s home town has not been authenticated, a fact which is relevant in the context of this case in light of the [IJ’s] adverse credibility finding.” Id. The agency denied Zheng’s motion to reopen on the grounds that his evidentiary submissions failed to demonstrate changed country conditions, which could have excepted the motion from the time and numerical bars that otherwise apply. Zheng petitions for review. DISCUSSION I. Standard and Scope of Review Zheng’s petition to this Court, filed on October 26, 2005, is timely only as it pertains to the BIA’s denial of his second motion to reopen on October 18, 2005. See 8 U.S.C. § 1252(b)(1) (requiring a petition for review to be filed no later than thirty days after the date of the order to be challenged). We therefore may review no more than that' denial. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per cu-riam) (noting that we are precluded from reviewing the underlying merits of an asylum" }, { "docid": "22433805", "title": "", "text": "established past persecution, his fear of future persecution had been rebutted by changed country conditions.” The BIA held that, in the absence of that presumption, Ali had not met his burden of establishing the elements of his claims for relief. Ali timely petitioned us to review that decision. While his petition was pending on appeal, Ali moved the BIA to reopen his proceedings on May 25, 2007, in light of new evidence detailing the 2006 coup in Fiji. The BIA denied his motion on August 7, 2007, concluding that the evidence was “new, but not material.” Ali timely petitioned us to review that decision, too. We have jurisdiction to review Ali’s petitions under 8 U.S.C. § 1252. Where, as here, the BIA cites Burbano and also provides its own review of the evidence and law, we review both the IJ’s and the BIA’s decisions. Joseph v. Holder, 600 F.3d 1235, 1239-40 (9th Cir.2010). We review de novo the BIA’s and IJ’s determinations of purely legal questions. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). We review factual findings, on the other hand, for substantial evidence. Halim v. Holder, 590 F.3d 971, 975 (9th Cir.2009). Under the substantial-evidence standard, “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. We will uphold the agency’s determination “if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006)). We review the BIA’s denial of a motion to reopen for abuse of discretion. Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.2010). We cannot affirm the BIA or IJ on a ground upon which it did not rely. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.2010). In other words, we “must decide whether to grant or deny the petition for review based on the Board’s [or IJ’s] reasoning rather than our own independent analysis of the record.” Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004). Ill The BIA and IJ correctly afforded Ali the presumption of a well-founded" }, { "docid": "22360565", "title": "", "text": "could be adjudicated. Mahmood also argued that the IJ erred in refusing to reopen his proceedings sua sponte. On November 29, 2007, the BIA, in a one-judge per curiam order, dismissed Mahmood’s appeal. In re Mahmood, No. [ AXX XXX XXX ] (B.I.A. Nov. 29, 2007). The BIA recounted the two bases articulated by the IJ for denying the motion to reopen, and then stated, “We are in agreement with the decision of the Immigration Judge.... ” The BIA also noted that the Supreme Court had granted certiorari to decide the question of whether the filing of a motion to reopen automatically tolls the voluntary departure period. Pending that decision, however, the BIA observed that Matter of Shaar remained good law in the Second Circuit, and so Mahmood’s filing of a motion to reopen did not toll the period of voluntary departure. DISCUSSION “Where, as here, the BIA adopts the IJ’s reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.2007). We examine de novo questions of law and applications of law to undisputed fact. See Chambers v. Office of Chief Counsel, 494 F.3d 274, 277 (2d Cir.2007). We review the denial of a motion to reopen for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). But we are without jurisdiction to review the Agency’s failure to reopen removal proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam); see also 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1). An alien seeking to reopen proceedings must file an appropriate motion to reopen within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). An IJ’s administrative order of removal becomes final upon waiver of appeal. See 8 C.F.R. §§ 1003.39, 1240.14; see also Thapa v. Gonzales, 460 F.3d 323, 333 (2d Cir.2006) (concluding that orders of voluntary departure that include alternate orders of removal are final orders for purposes of judicial review). In" }, { "docid": "22433806", "title": "", "text": "We review factual findings, on the other hand, for substantial evidence. Halim v. Holder, 590 F.3d 971, 975 (9th Cir.2009). Under the substantial-evidence standard, “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. We will uphold the agency’s determination “if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006)). We review the BIA’s denial of a motion to reopen for abuse of discretion. Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.2010). We cannot affirm the BIA or IJ on a ground upon which it did not rely. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.2010). In other words, we “must decide whether to grant or deny the petition for review based on the Board’s [or IJ’s] reasoning rather than our own independent analysis of the record.” Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004). Ill The BIA and IJ correctly afforded Ali the presumption of a well-founded fear of persecution. But their finding that the Government had rebutted that presumption is not supported by substantial evidence because they failed to make an individualized determination of how the changed country conditions in Fiji impacted Ali’s specific harms and circumstances. In addition, the BIA abused its discretion when it denied Ali’s motion to reopen because it failed to analyze the effect of the 2006 coup on Ali’s presumption of a well-founded fear of persecution. A The petitioner bears the burden of establishing his eligibility for asylum. 8 C.F.R. § 1208.13(a). To satisfy this burden, an alien must show he is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [his country of nationality] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). An alien who has suffered past persecution is presumed to have a well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1). The Government" }, { "docid": "22451589", "title": "", "text": "motion to reopen on September 22, 2006, finding that it was untimely and that Gao did not qualify for an exception to the timeliness requirement because he had not shown changed circumstances arising in his country of nationality under 8 C.F.R. § 1003.2(c)(3)(h). The BIA did not specifically address the documents Gao submitted to show changed country conditions, merely stating: “In addition, none of the background information submitted with the motion specifically mentions respondent by name.” We review the denial of a motion to reopen for abuse of discretion. Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). While the BIA need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” as long as it “has given reasoned consideration to the petition, and made adequate findings,” Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir.2006) (internal quotation marks omitted), we have repeatedly stated that “[djespite the agency’s discretion ... ’ IJs and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim’ and that ‘a similar, if not greater, duty arises in the context of motions to reopen based on changed country conditions.’ ” Fong Chen v. Gonzales, 490 F.3d 180, 182 (2d Cir.2007) (per curiam) (quoting Shou Yung Guo, 463 F.3d at 115). In Shou Yung Guo, the petitioner (who had two children, the second born in the United States before the order of removal) submitted with her motion to reopen (1) a pair of decisions from the Changle City and Fujian Province Family-Planning Administrations stating that Chinese nationals who engaged in reproductive behavior overseas would be subject to enforcement of family planning policies upon returning to China and (2) a family planning question-and-answer style document from Changle City stating that the provincial regulations mandated insertion of an intrauterine device upon the birth of the first child and sterilization upon the birth of the second child. 463 F.3d at 112-13. Finding these documents “unquestionably” material, we remanded to the" }, { "docid": "23309377", "title": "", "text": "PER CURIAM: Petitioner Jin Xiu Chen, a citizen of the People’s Republic of China, seeks review of a January 20, 2006 order of the Board of Immigration Appeals (“BIA”) affirming the September 21, 2004 decision of Immigration Judge (“IJ”) Jeffrey S. Chase denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006), aff'g No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Sept. 21, 2004). In its order, the BIA also denied Chen’s motion to remand. In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006). Chen’s sole claim for relief is that she fears forced sterilization if she is returned to her home city of Changle City, Fujian Province, because she has three U.S.-born children. For the reasons to be discussed, because the documents identified in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and several documents submitted by Chen that the BIA did not address, suggest the existence an official policy of forced sterilization in Changle City, we remand this case to the BIA to determine the validity, scope, and import of these documents and to reconsider Chen’s claim of future persecution in light of them. In an accompanying summary order, we address the other arguments presented in Chen’s petition for review. The IJ found that Chen had failed to present evidence sufficient to establish that she would face forced sterilization if returned to her home city in China. Both this Court and the BIA have concluded that the evidence previously available to support Chinese asylum applicants’ claims of forced sterilization, including the oft-submitted “Aird Affidavit” prepared by retired demographer and immigration expert Dr. John S. Aird, was inadequate to establish the existence of an official policy of forced sterilization on the part of any Chinese province or locality, and thus insufficient to show that the applicants were likely to face forced sterilization if returned to China. See Wei Guang Wang v. BIA 437 F.3d 270, 274-76 (2d Cir.2006)" }, { "docid": "22735520", "title": "", "text": "the BIA’s denial of a motion to reopen an asylum case. The petitioner had submitted several of the documents that Zheng and Chen have submitted in these cases. In particular, the petitioner in Li offered as evidence the State Department’s Country Reports for 2004 and 2005, the 2005 Commission Report, and Aird’s testimony to Congress in 2002. Id. at 1373. The petitioner in Li also submitted her affidavit and that of her mother, the State Department’s Country Report for 2003, the Consular Information Sheet for 2005, and two unidentified newspaper articles from 2005. Id. In reviewing the BIA’s denial of the motion to reopen the court in Li discussed various statements contained in the affidavits describing examples of forcible sterilization from the petitioner’s hometown. See id. at 1375. The court observed that the petitioner’s “other evidence corrobo rated her anecdotal evidence of a change in policy in her province and substantiated her fear that local officials in Fujian have the incentives and discretion to sterilize women with more than one child.” Id. In particular, the court referred to statements contained in the State Department’s 2005 Country Report. The court concluded that “Li’s evidence of a recent campaign of forced sterilization in her home village, evidence consistent with the conclusion of recent government reports, clearly satisfied the criteria for a motion to reopen her removal proceedings.” Id. Contrary to the BIA’s findings in Li as well as in Zheng’s case, the court stated that “the [CJonsular [IJnformation [Sjheet established that, for some purposes at least, the Chinese government considers foreign-born children of Chinese nationals equivalent to children born in China.” Id. at 1376. We recognize that, as the Court of Appeals for the Second Circuit explained in Wang v. BIA 437 F.3d 270 (2d Cir.2006), there is an inherent tension in the criteria setting forth the standards for the review of BIA decisions that lack detailed discussion: On the one hand, the BIA abuses its discretion if it fails completely to address evidence of changed country circumstances offered by a petitioner.... The BIA should demonstrate that it has considered such evidence," }, { "docid": "21282131", "title": "", "text": "LOKEN, Chief Judge. Wen Ying Zheng, a native and citizen of the People’s Republic of China, entered the United States in 1994. Facing deportation in September 1997, Zheng applied for asylum, withholding of deportation, and relief under the Convention Against Torture, claiming a fear of persecution if she returned to China on account of her past political activities. After the birth of a child in 1998, Zheng claimed that she also feared persecution and forced sterilization under China’s One Child policy. See 8 U.S.C. § 1101(a)(42). In June 2003, an immigration judge denied Zheng’s claims for relief, granted her voluntary departure, and ordered her removed. Zheng appealed, the BIA summarily affirmed, and Zheng dismissed a petition for review to this court in November 2004. In September 2005, Zheng filed a motion with the BIA for leave to file a successive asylum application. Relying on 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(4), she claimed that the application was not barred because the birth of her fourth child created an increased risk of persecution under China’s One Child policy. The BIA denied the motion, holding that an alien who is under a final order of removal must successfully move to reopen the case in order to file a successive asylum application. The BIA then treated Zheng’s motion as a motion to reopen and denied it as untimely because Zheng submitted no evidence of changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(i-ii); 8 C.F.R. § 1003.2(c)(3)(ii). Zheng petitions for judicial review, arguing that the BIA committed an error of law in ruling that her successive asylum application must meet the more stringent requirements of a motion to reopen. After the case was submitted, two of our sister circuits issued decisions upholding the BIA’s construction of these statutes and regulations in factually similar cases. See Chen v. Gonzales, 498 F.3d 758 (7th Cir.2007); Huang v. Attorney General, No. 06-3013, slip op., 249 Fed.Appx. 293, 2007 WL 2815598 (3d Cir. Sept.28, 2007); accord Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). We agree with these decisions and therefore deny the petition for" }, { "docid": "23241564", "title": "", "text": "BIA that it should consider her motion based on her evidence of changed circumstances. The BIA specifically concluded that Averianova did not demonstrate changed conditions in Uzbekistan, so it denied her motion to reopen. “While the BIA must consider ... evidence [of changed circumstances], it may do so in summary fashion without a reviewing court presuming that it has abused its discretion.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). Because Averianova “has failed to come forth with any facts showing that the BIA ... [made] its decision without” adequately considering her evidence of changed circumstances in Uzbekistan, we cannot conclude that the BIA abused its discretion or violated her due process rights when it denied her motion to reopen. See Rodriguez-Rivera, 993 F.2d at 171; see also Albathani v. INS, 318 F.3d 365, 379 (1st Cir.2003) (suggesting that summary affirmance by the BIA does not “establish that the required review is not taking place”); Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991) (“[T]he burden is on the petitioners to convince us that the BIA gave short shrift to the evidence they presented.”). Averianova also argues that it is not clear whether “changed circumstances” under § 1003.2(c)(3)(ii) can include a petitioner’s changed personal circumstances in the United States or whether it is limited to changed circumstances in a petitioner’s country of nationality or in the country to which removal has been ordered. According to Averianova, because the phrase, “changed circumstances,” has various meanings in different regulations, she lacked notice that “changed circumstances” under § 1003.2(c)(3)(ii) refers exclusively to changed country conditions. She argues that the ambiguity in the regulation “is a clear example” of a due process violation. We reject this argument. The regulation unambiguously states that an applicant must show “changed circumstances arising in the country of nationality or in the country to which deportation has been ordered,” id. (emphasis added), and we have previously held that motions to reopen based on § 1003.2(c)(3)(ii) cannot be premised on changed personal circumstances arising from conditions outside the country of feared persecution, Zhong Qin Zheng, 523 F.3d" }, { "docid": "22386324", "title": "", "text": "to warrant sua sponte reopening of his case. Wang timely filed before this Court a petition for review of the BIA’s denial of his motion to reopen. He argues that the BIA abused its discretion in denying his motion to reopen because he demonstrated changed country conditions in China that warranted an exception to the 90-day filing deadline for motions to reopen. He further argues that he “suffered ineffective assistance of counsel, and that such circumstances warrant equitable tolling of the time limitations on motions to reopen.” In response, the Government argues that the BIA did not abuse its discretion in denying Wang’s motion to reopen because it properly determined that Wang failed to show: (1) that he exercised due diligence during the relevant period of time; and (2) that country conditions in China had changed so as to warrant an exception to the ninety-day time limit for filing motions to reopen. DISCUSSION We review the BIA’s denial of a motion to reopen for abuse of discretion. See, e.g., Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001)). Pursuant to 8 C.F.R. § 1003.2(c)(2), a motion to reopen must be filed within 90 days of the entry of the final decision in the underlying proceeding. See note 4, ante at 712 (text of provision). Claims of ineffective assistance of counsel may provide a sufficient basis for equitable tolling of the 90-day period if the movant shows that his due process rights were violated by the conduct of counsel, and that the movant “exercised due diligence in pursuing the case during the period [he] seeks to toll.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citation omitted); Cekic v. INS, 435 F.3d 167," }, { "docid": "22670068", "title": "", "text": "was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Even when an alien satisfies the unavailability condition noted in this rule, however, her ability to secure reopening depends on a demonstration of prima facie eligibility for asylum, which means she must show a “realistic chance” that she will be able to obtain such relief. Poradisova v. Gonzales, 420 F.3d at 78. This requires the alien to carry the “heavy burden” of demonstrating that the proffered new evidence would likely alter the result in her case. INS v. Abudu, 485 U.S. at 110, 108 S.Ct. 904 (analogizing burden faced by alien seeking to reopen removal proceedings to that of criminal defendant moving for new trial); see Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156-57 (2d Cir.2005) (citing In re Coelho, 20 I. & N. Dec. 464, 473 (B.I.A.1992)). We review a BIA decision to deny reopening deferentially for abuse of discretion. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir.2007). We will identify such abuse only if the BIA’s decision-making was “arbitrary or capricious,” Poradisova v. Gonzales, 420 F.3d at 77, as evidenced by a decision that “provides no rational explanation” for the agency’s conclusion, “inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements,” Qin Wen Zheng v. Gonzales, 500 F.3d at 146 (internal quotation marks omitted). In the absence of such concerns, however, we do not demand that the BIA “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.2007) (internal quotation marks omitted). Still, as we noted in our remand order in this case, agency fact-finders have a particular duty explicitly to consider relevant evidence of country conditions when a petitioner bases a motion to reopen on a purported change in those conditions. Where such consideration has been given, we review the BIA’s fact-finding only for “substantial evidence.” Ping Chen v. U.S. Att’y Gen., 502" }, { "docid": "22715388", "title": "", "text": "action trumps customary international law. This rule, of course, applies in immigration matters.” (internal quotation marks and citations omitted)). Thus, petitioners’ argument based on customary international law also fails. IV. Disposition of the Instant Cases Applying the agency’s statutory interpretation, which we affirm, to petitioners’ cases, we conclude that the BIA did not abuse its discretion in denying petitioners’ motions to reopen. Petitioners were all subject to final orders of removal after their initial asylum applications were denied. They were therefore required to properly file a motion to reopen to pursue a new asylum application. Because petitioners filed their requests for relief more than ninety days, indeed several years, after the entry of their final removal orders, their motions to reopen were untimely and, pursuant to 8 U.S.C. § 1229a(c) (7) (C) (ii) and 8 C.F.R. 1003.2(c)(3)(ii), they were required to demonstrate that conditions in China had changed. Petitioners requested reopening and asylum based on the birth of a second or third child in the United States. But it is well settled in this circuit that the birth of additional children in the United States is evidence of changed personal circumstances, not changed country conditions within the meaning of 8 C.F.R. § 1003.2(c)(3)(ii). See, e.g., Wang, 437 F.3d at 273-74; Guan, 345 F.3d at 49 (“Guan’s evidence is essentially of changed personal circumstances in the United States based on the birth of her two sons.... ”). Because petitioners failed to satisfy the requirements for a motion to reopen, the BIA did not err in denying their motions or failing to consider their successive asylum applications. Petitioners raise some additional arguments that pertain to their individual cases. We have considered those arguments and find all of them to be without merit. CONCLUSION For the foregoing reasons, the petitions for review are Denied. Having completed our review, any stay of removal that the court previously granted in these proceedings is Vacated, and any pending motion for a stay of removal is Dismissed as moot. . Jin’s motion to reopen was See In re Jin, No. [ A XX XXX XXX ] denied" }, { "docid": "22735521", "title": "", "text": "court referred to statements contained in the State Department’s 2005 Country Report. The court concluded that “Li’s evidence of a recent campaign of forced sterilization in her home village, evidence consistent with the conclusion of recent government reports, clearly satisfied the criteria for a motion to reopen her removal proceedings.” Id. Contrary to the BIA’s findings in Li as well as in Zheng’s case, the court stated that “the [CJonsular [IJnformation [Sjheet established that, for some purposes at least, the Chinese government considers foreign-born children of Chinese nationals equivalent to children born in China.” Id. at 1376. We recognize that, as the Court of Appeals for the Second Circuit explained in Wang v. BIA 437 F.3d 270 (2d Cir.2006), there is an inherent tension in the criteria setting forth the standards for the review of BIA decisions that lack detailed discussion: On the one hand, the BIA abuses its discretion if it fails completely to address evidence of changed country circumstances offered by a petitioner.... The BIA should demonstrate that it has considered such evidence, even if only to dismiss it. In so doing, the BIA should provide us with more than cursory, summary or conclusory statements, so that we are able to discern its reasons for declining to afford relief to a petitioner. On the other hand, we do not hold ... that where the BIA has given reasoned consideration to the petition, and made adequate findings, it must expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.... While the BIA must consider such evidence, it may do so in summary fashion without a reviewing court presuming that it has abused its discretion. Id. at 275 (internal citations and quotation marks omitted). Notwithstanding this tension “[immigration judges] and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,” and “[a] similar, if not greater, duty arises in the context of motions to reopen based on changed country conditions.” Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.2006) (internal" } ]

[ { "docid": "14848186", "title": "", "text": "confidentiality as to his identity; I further find little if any evidence that the public interest in disclosure is sufficient to override plaintiff’s security interest. Nor do I find that any significant harm will befall defendant if plaintiff proceeds under a fictitious name. Accordingly, I authorize the plaintiff to pursue this litigation using a pseudonym, and I deny defendant’s motion to strike the amended complaint. SO ORDERED. . Under most circumstances, parties to a lawsuit are required to proceed under their real names. See, e.g., Fed.R.Civ.P. 10(a); Southern Methodist Univ. Ass’n. v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979). This general rule has been broken on occasion, however. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974). The present dispute focuses on whether plaintiff’s circumstances warrant such a departure from the general rule. . Blue Cross correctly points out McConn is distinguishable from the instant case in that the plaintiff transsexuals in McConn were in danger of prosecution for violating a city ordinance making it unlawful for persons to cross-dress in public. See Defendant’s Reply Memorandum at 4. Here, the plaintiff faces no such threat of criminal sanctions; nonetheless, the McConn plaintiffs and the present plaintiff share other, equally valid, concerns regarding divulgence of their true identities. .“The decision [as to whether a party may sue anonymously] requires a balancing of considerations calling for maintenance of a party’s privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings.\" Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981). . Plaintiff argues that he has already, and will likely continue to, lose professional clients once his status as a transsexual is no longer confidential. The Court need not address this, since I find that the probability of social stigmatization is sufficient to override any public interest in identity disclosure in this case." } ]

[ { "docid": "22289503", "title": "", "text": "ease, in conjunction with the other factors weighing in favor of maintaining the Does’ anonymity, tip the balance against the customary practice of judicial openness. A final factor we find especially persuasive is the fact that plaintiffs are children. The law of Mississippi, as in many other states as well, shields the identities of child-litigants from public disclosure in certain circumstances. See Miss.Code Ann. § 43-21-251 (Supp.1980) (providing for confidentiality of juvenile court records); Miss. Code Ann. § 93-17-25 (1972) (providing for confidentiality of adoption proceedings). The gravity of the danger posed by the threats of retaliation against the Does for filing this lawsuit must also be assessed in light of the special vulnerability of these child-plaintiffs. Again, we do not mean to imply that all civil rights suits mounted in the name of children may be prosecuted anonymously. Rather, we view the youth of these plaintiffs as a significant factor in the matrix of considerations arguing for anonymity here. We advance no hard and fast formula for ascertaining whether a party may sue anonymously. The decision requires a balancing of considerations calling for maintenance of a party’s privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings. We emphasize the special status and vulnerability of the child-litigants; the showing of possible threatened harm and serious social ostracization based upon militant religious attitudes, and the fundamental privateness of the religious beliefs, all of which are at the core of this suit to vindicate establishment clause rights. We conclude that the almost universal practice of disclosure must give way in this case to the privacy interests at stake. The Does should have been permitted to proceed under fictitious names. Therefore, the district court’s determination that it lacked jurisdiction to issue a protective order cannot stand. REVERSED. . Affidavit of V. J. Stegall; defendant’s exhibit II, Record at 38-39. . Affidavit of E. L. Perritt; defendant’s exhibit I; Record at 36-37. . The district court did not consider the propriety of class action treatment for this claim before issuing the order from which this appeal was taken. . Chapter 374" }, { "docid": "15292370", "title": "", "text": "“has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. at 323 (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)). The court identified three circumstances common to those cases where a plaintiff was permitted to proceed under a fictitious name. Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The factors enumerated in Frank and Stegall were not intended as a “ ‘rigid, three-step test for the propriety of party anonymity.’ ” Id. (quoting Stegall, 653 F.2d at 185). The mere presence of one factor was not meant to be dispositive, but rather, these factors were “highlighted merely as factors deserving consideration.” Id. Instead, a court must “carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiffs identity should yield to the plaintiffs privacy concerns.” Id.; see' also [Methodist Univ. Ass’n of Women Law Students v.] Wynne & Jaffe, 599 F.2d [707,] 713 [(5th Cir.1979)]. Heather K., 887 F.Supp. at 1255-56; accord Luckett, 21 F.Supp.2d at 1029 (“Although the listed factors [from Frank and Stegall ] are not exhaustive, they provide valuable guidance.”). Some recent decisions have added to the three pertinent considerations suggested in Frank and Stegall.. These decisions suggest consideration of (4) whether the plaintiff would risk injury if identified; (5) whether the party defending against a suit brought under a pseudonym would thereby be prejudiced, see Free Speech, 1999 WL 47310 at *2 (citing Shakur, 164 F.R.D. at 360, as considering these factors in-addition to the three cited in Frank)-, (6) the extent to which the identity of the litigant has been kept confidential; (7) whether, because of the purely legal na ture of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities, see id. (citing Doe v. Provident Life and" }, { "docid": "23208598", "title": "", "text": "complaints filed with the EEOC, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The Postal Service filed a motion to dismiss based on Doe’s violation of Fed. R.Civ.P. 10(a). Rule 10(a) requires a plaintiff to include the names of all parties in a complaint. In response, Doe filed a motion to proceed under the fictitious name, Bill W. Doe. The district court denied Doe’s motion and expressed its intention to grant the Postal Service’s motion to dismiss if Doe did not file an amended complaint within twenty days of the order substituting his full legal name for Bill W. Doe. Doe appeals the district court’s order denying his motion to proceed under a fictitious name. DISCUSSION This case requires us to decide under what circumstances a plaintiff may proceed under a fictitious name. Generally, parties to a lawsuit must identify themselves in their respective pleadings. Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979). Fed.R.Civ.P. 10(a) requires a complaint to “include the names of all the parties.” This rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties. Doe v. Rostker, 89 F.R.D. 158, 160 (N.D.Cal.1981); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974). Doe points out that he is challenging government activity and that the prosecu tion of his suit would compel him to disclose information of the utmost secrecy, i.e., his alcoholism. Relying on Doe v. Stegall, 653 F.2d 180 (5th Cir. Unit A Aug. 1981), Doe argues that these circumstances are enough to overcome the clear mandate of Rule 10(a). The Postal Service agrees that Stegall sets out this Circuit’s test for anonymity, but argues that the circumstances in this case simply do not overcome Rule 10(a)’s explicit requirement of disclosure. The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Stegall," }, { "docid": "20674839", "title": "", "text": "this matter fully and will be totally exonerated.” (internal quotations omitted)); id., Ex. 9 (Statement on www.abc2news.com) at 2 (similar); id., Ex. 10 (Statement on www. baltimore.cbslocal.com) at 1; id., Ex. 11 (Statement on www.usatoday.com) at 1. In response to the public commentary from the plaintiffs counsel, the defendant has filed the motion, which is the subject of this opinion. See Def.’s Mem. at 1. II. ANALYSIS Federal Rule of Civil Procedure 10(a) requires that a complaint state all of the names of the parties. “Disclosure of the parties’ identities furthers the public interest in knowing the facts surrounding judicial proceedings.” Nat’l Ass’n of Waterfront Emp’rs v. Chao, 587 F.Supp.2d 90, 99 (D.D.C.2008). However, courts in this district allow plaintiffs to proceed under a pseudonym in certain cases involving matters of a sensitive and highly personal nature. See id.; see also Doe v. De Amigos, LLC, No. 11-cv-1755, slip op. at 2 (D.D.C. Apr. 30, 2012); Yaman v. U.S. Dep’t of State, 786 F.Supp.2d 148, 153 (D.D.C.2011); Doe v. Von Eschenbach, No. 06-2131, 2007 WL 1848013, at *2 (D.D.C. June 27, 2007). “[I]t is within the discretion of the district court to grant the ‘rare dispensation’ of anonymity....” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C.Cir.1995) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993)). In exercising this discretion, “the [C]ourt has ‘a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted.’ ” Id. (quoting James, 6 F.3d at 238). “As part of this inquiry, the [C]ourt should take into account the risk of unfairness to the opposing party, as well the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)) (internal citation omitted); see also Yaman, 786 F.Supp.2d at 152 (explaining that notwithstanding “ ‘this country’s strong tradition of access to judicial proceedings’ there are situations in which a ‘party’s interest in privacy or confidentiality ... outweighs this strong presumption in favor of public access’ ” (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d" }, { "docid": "19657517", "title": "", "text": "Cir.1993)). When a party raises a privacy interest, a court must balance that interest against the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir.1981); accord Yacovelli v. Moeser, No. 02-596, 2004 WL 1144183, at *6 (M.D.N.C. May 20, 2004). To determine whether a party may proceed anonymously, a court should consider the impact of the plaintiffs anonymity on the public interest in open proceedings and on fairness to the defendant. Microsoft, 56 F.3d at 1464. In balancing the competing interests involved, factors to consider include: (1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. See Yacovelli 2004 WL 1144183, at *6-8. Pseudonymous litigation has been permitted “only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiffs identity.” Doe v. Frank, 951 F.2d 320, 322-23 (11th Cir.1992). In contrast, requests to proceed anonymously have been denied where the plaintiff merely cites personal embarrassment as the basis of the need for confidentiality. In Qualls, for example, the plaintiffs were soldiers serving in Iraq or en route to Iraq whose terms of service were involuntarily extended by the Department of Defense’s Stop Loss program. Qualls, 228 F.R.D. at 9. They claimed that if they were named they could be subject to retaliation including physical harm, and they submitted affidavits of unrelated third parties which alleged retaliation or bias against military personnel" }, { "docid": "23208599", "title": "", "text": "requires a complaint to “include the names of all the parties.” This rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties. Doe v. Rostker, 89 F.R.D. 158, 160 (N.D.Cal.1981); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974). Doe points out that he is challenging government activity and that the prosecu tion of his suit would compel him to disclose information of the utmost secrecy, i.e., his alcoholism. Relying on Doe v. Stegall, 653 F.2d 180 (5th Cir. Unit A Aug. 1981), Doe argues that these circumstances are enough to overcome the clear mandate of Rule 10(a). The Postal Service agrees that Stegall sets out this Circuit’s test for anonymity, but argues that the circumstances in this case simply do not overcome Rule 10(a)’s explicit requirement of disclosure. The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Stegall, 653 F.2d at 186. It is the exceptional case in which a plaintiff may proceed under a fictitious name. In Stegall, the Fifth Circuit isolated and catalogued the circumstances common to the “Doe cases” collected in its prior opinion, Southern Methodist Univ. Ass’n v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979). Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Stegall, 653 F.2d at 185. The enumerated factors in Stegall were not intended as a “rigid, three-step test for the propriety of party anonymity.” Id. Nor was the presence of one factor meant to be dispositive. Instead, they were highlighted merely as factors deserving consideration. A judge, therefore, should carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiff’s identity should yield to the plaintiff’s privacy concerns. Wynne & Jaffe, 599 F.2d at 713. The proper standard" }, { "docid": "11127992", "title": "", "text": "favor of allowing Company Doe to litigate its claims under a pseudonym, explaining that Company Doe initiated the underlying suit to prevent disclosure of its identity; disclosing Company Doe’s identity would cause harm to the company; and the Commission would not be prejudiced by allowing Company Doe to litigate its claims pseudonymously. Pseudonymous litigation undermines the public’s right of access to judicial proceedings. The public has an interest in knowing the names of the litigants, see Coe v. Cnty. of Cook, 162 F.3d 491, 498 (7th Cir.1998), and disclosing the parties’ identities furthers openness of judicial proceedings, see Jacobson, 6 F.3d at 238. It is unsurprising, then, that many of our sister circuits have adopted an approach for pseudonymity requests that balances a litigant’s stated need for anonymity against the public’s countervailing interests in full disclosure and openness. See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir.2008) (holding that “the plaintiffs interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant”); Doe v. Porter, 370 F.3d 558, 560 (6th Cir.2004) (framing pseudonym issue by asking “whether a plaintiffs privacy interests substantially outweigh the presumption of open judicial proceedings”); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir.2001) (explaining that the “ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings”); Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000) (holding that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity”); M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998) (adopting a test that “weigh[s] the plaintiffs claimed right to privacy against the countervailing public interest in [open proceedings]”). We agree that the public’s interest in open proceedings must inform a district court’s pseudonymity calculus. We therefore hold that, when a party" }, { "docid": "15292369", "title": "", "text": "use of pseudonyms based on a need for anonymity in a particular lawsuit is left to the discretion of the court. Heather K, 887 F.Supp. at 1255 (citing, inter alia, James v. Jacobson, 6 F.3d 233, 235 (4th Cir.1993), and Frank, 951 F.2d at 323). Unfortunately, there is still no express standard to guide courts in exercising such discretion, because neither the Eighth Circuit Court of Appeals nor the United States Supreme Court has yet provided instruction on this issue, although both have permitted prosecution of suits under pseudonyms. Compare id. (noting the lack of such guidance and citing Supreme Court and Eighth Circuit cases permitting use of pseudonyms). In Heather K, this' court looked for guidance to a decision of the Eleventh Circuit Court of Appeals: In Doe v. Frank, 951 F.2d 320 ([11th Cir.] 1992), the plaintiff sought to proceed under a fictitious name to avoid social stigma that he argued would attach upon revelation of his alcoholism. The Eleventh Circuit concluded that a plaintiff may proceed anonymously in “exceptional cases,” where he “has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. at 323 (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)). The court identified three circumstances common to those cases where a plaintiff was permitted to proceed under a fictitious name. Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The factors enumerated in Frank and Stegall were not intended as a “ ‘rigid, three-step test for the propriety of party anonymity.’ ” Id. (quoting Stegall, 653 F.2d at 185). The mere presence of one factor was not meant to be dispositive, but rather, these factors were “highlighted merely as factors deserving consideration.” Id. Instead, a court must “carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiffs" }, { "docid": "4944928", "title": "", "text": "names since Roe v. New York). Thus, the central inquiry before the court is whether the plaintiff should be permitted to proceed in this cause under a pseudonym and if not, whether, as defendants contend, the cause must be dismissed in its entirety for plaintiff’s alleged failure to properly commence the action. The decision whether to allow the use of fictitious names based on a need for anonymity in a particular lawsuit is left to the discretion of the trial court. See Roe v. Borup, 500 F.Supp. 127, 130 (E.D.Wis. 1980). There is, however, no express standard to guide the court in making its decision. Rather, the court must balance the plaintiffs interest in maintaining anonymity against the “customary and constitutionally-embedded presumption of openness in judicial proceedings[,]” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981), since it is axiomatic that lawsuits are public events and that the public has a legitimate interest in knowing the facts involved, including the identities of the parties____ The defendant also has a strong interest in knowing who is suing him. Doe v. Rostker, 89 F.R.D. 158, 162 (N.D.Cal.1981). It must be borne in mind, though, that the policy under Rule 10 favors disclosure of the names of litigants, such that identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.1979); see also Doe v. Deschamps, 64 F.R.D. 652, at 653 (D.Mont.1974) (court should grant permission to proceed under fictitious name only in exceptional circumstances where interest of justice so requires). That is, there are limited exceptions to the Rule 10 requirement of disclosure where parties have strong interests in proceeding anonymously. Doe v. Rostker, 89 F.R.D. at 161. In Southern Methodist University Association v. Wynne & Jaffe, 599 F.2d 707 (5th Cir.1979), the Fifth Circuit observed that while neither Title VII nor the Federal Rules of Civil Procedure make provision for plaintiff to proceed anonymously, there are certain special circumstances in which that technique has been allowed. “[W]here" }, { "docid": "4944927", "title": "", "text": "has been commenced. Roe v. State of New York, 49 F.R.D. at 281. The court further ruled that the subsequent disclosure of the true identities of the plaintiffs did not change the status of the case since, in that court’s opinion, no action had been commenced by filing of the complaint and nothing would serve to change that. The decision in Roe v. State of New York, upon which defendants heavily rely, was rendered in 1970, a time in which instances of parties suing pseudonymously were rare. See Steiner, Public Trial, Pseudonymous Parties: When Should Litigants be Permitted to Keep Their Identities Confidential? 37 Hastings L.J. 1 (1985). Since that time, however, increasing numbers of parties have sought for a variety of reasons to sue anonymously in order to keep their identities confidential, and in fact, “a practice has developed permitting individuals to sue under fictious names” under certain circumstances. 27 Fed.Proc., L.Ed. § 62:96 (1984); see also Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974) (noting host of cases have been prosecuted under fictitious names since Roe v. New York). Thus, the central inquiry before the court is whether the plaintiff should be permitted to proceed in this cause under a pseudonym and if not, whether, as defendants contend, the cause must be dismissed in its entirety for plaintiff’s alleged failure to properly commence the action. The decision whether to allow the use of fictitious names based on a need for anonymity in a particular lawsuit is left to the discretion of the trial court. See Roe v. Borup, 500 F.Supp. 127, 130 (E.D.Wis. 1980). There is, however, no express standard to guide the court in making its decision. Rather, the court must balance the plaintiffs interest in maintaining anonymity against the “customary and constitutionally-embedded presumption of openness in judicial proceedings[,]” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981), since it is axiomatic that lawsuits are public events and that the public has a legitimate interest in knowing the facts involved, including the identities of the parties____ The defendant also has a strong interest in knowing who is" }, { "docid": "14848178", "title": "", "text": "1 (1982), the Court granted plaintiff Ann Doe’s motion to proceed by a fictitious name. Ms. Doe’s lawsuit was premised on a denial of Medicare reimbursement for her sex-change operation. The Court in Doe v. McConn, 489 F.Supp. 76, 77 (S.D.Texas 1980), explained that “The Jane Doe Plaintiffs and Plaintiff M.B., in various stages of sexual transition, are suing under fictitious names to insulate themselves from possible harassment, to protect their privacy, and to protect themselves from prosecution resulting from this action.” Finally, in Doe v. Alexander, 510 F.Supp. 900 (D.Minn.1981), the Court, without comment, permitted the transsexual plaintiff to litigate pseudonymously. These cases assure me that my instinctive reaction to defendant’s motion is devoid of neither legal precedent nor merit; other courts have held that transsexuals seeking to protect their rights through the judicial process are not required to divulge their identities. In balancing plaintiff’s right to privacy and security against the dual concerns of (1) public interest in identification of the litigants; and (2) harm to the defendant stemming from falsification of plaintiff’s name, this Court is cognizant of the highly sensitive and personal nature of each person’s sexuality. Particularly in this era of seemingly increased societal intolerance toward “unconventional” sexual behavior, I will not strip plaintiff of the cloak of privacy which shields him from the stigmatization he might otherwise endure. In assessing the potential harm to plaintiff if he is forced to reveal his identity, a useful analogy may be drawn to homosexuals and others whose sexuality also expose them to public derision and discrimination. This analogy was acknowledged in Stein-man, Public Trial, Pseudonymous Parties: When Should Litigants be Permitted to Keep Their Identities Confidential?, 37 Hastings L.J. 1, 51 (1985), a scholarly article on the subject of pseudonymous litigants: [Pjeople may have a right not to disclose their sexual histories and preferences, and a strong interest in nondisclosure. Matters of sexual identity and sexual preference are exceedingly personal_ [WJhile sex-change operations are too new to carry a long history of condemnation and stigma, the experience of homosexuals and transvestites strongly indicates a similar public response." }, { "docid": "23322210", "title": "", "text": "circumstances.”). Other Circuits have established such a standard, and several district courts in this Circuit have recently grappled with this issue. Drawing on both the rules adopted by other Circuits and the experience of the district courts of our Circuit, we now set forth the standard governing the use of pseudonyms in civil litigation in our Circuit. The courts that have considered this issue have framed the relevant inquiry as a balancing test that weighs the plaintiffs need for anonymity against countervailing interests in full disclosure. In Aware Woman Center, the Eleventh Circuit explained that the “ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” 253 F.3d at 685 (internal quotation marks omitted). Likewise, the Tenth Circuit “weights] the plaintiffs claimed right to privacy against the countervailing public interest in [open proceedings],” M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998), as does the Fifth Circuit, see Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. Unit A Aug.1981) (discussing “the balance pitting privacy concerns against the presumption of openness of judicial proceedings”). Similarly, the Ninth Circuit has held that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs [1] prejudice to the opposing party and [2] the public’s interest in knowing the party’s identity.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000). Variations of the Ninth Circuit’s formulation have been adopted previously by district courts in our Circuit. See, e.g., Doe v. Del Rio, 241 F.R.D. 154, 157 (S.D.N.Y.2006); EW v. N.Y. Blood Ctr., 213 F.R.D. 108, 110 (E.D.N.Y.2003). We agree that the interests of both the public and the opposing party should be considered when determining whether to grant an application to proceed under a pseudonym. Accordingly, we endorse the Ninth Circuit’s formulation and hold that when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiffs interest in anonymity must be balanced" }, { "docid": "23322209", "title": "", "text": "lightly. Certainly, “[i]dentifying the parties to the proceeding is an important dimension of pnblicness. The people have a right to know who is using their courts.” Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir.1997) (Posner, J.). Courts have nevertheless “carved out a limited number of exceptions to the general requirement of disclosure [of the names of parties], which permit plaintiffs to proceed anonymously.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir.2001). Indeed, we have approved of litigating under a pseudonym in certain circumstances, see, e.g., Smith v. Edwards, 175 F.3d 99, 99 n. 1 (2d Cir.1999) (“For the sake of the privacy of plaintiffs child, pseudonyms for plaintiff and his family are employed throughout this opinion.”), but we have not yet set forth the standard for permitting a plaintiff to do so, see, e.g., Doe v. Menefee, 391 F.3d 147, 149 n. 1 (2d Cir.2004) (“We decline to address the complex question of the applicable standards for litigating under a pseudonym under these circumstances.”). Other Circuits have established such a standard, and several district courts in this Circuit have recently grappled with this issue. Drawing on both the rules adopted by other Circuits and the experience of the district courts of our Circuit, we now set forth the standard governing the use of pseudonyms in civil litigation in our Circuit. The courts that have considered this issue have framed the relevant inquiry as a balancing test that weighs the plaintiffs need for anonymity against countervailing interests in full disclosure. In Aware Woman Center, the Eleventh Circuit explained that the “ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” 253 F.3d at 685 (internal quotation marks omitted). Likewise, the Tenth Circuit “weights] the plaintiffs claimed right to privacy against the countervailing public interest in [open proceedings],” M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998), as does the Fifth Circuit, see Doe v. Stegall, 653 F.2d 180, 186" }, { "docid": "14848179", "title": "", "text": "name, this Court is cognizant of the highly sensitive and personal nature of each person’s sexuality. Particularly in this era of seemingly increased societal intolerance toward “unconventional” sexual behavior, I will not strip plaintiff of the cloak of privacy which shields him from the stigmatization he might otherwise endure. In assessing the potential harm to plaintiff if he is forced to reveal his identity, a useful analogy may be drawn to homosexuals and others whose sexuality also expose them to public derision and discrimination. This analogy was acknowledged in Stein-man, Public Trial, Pseudonymous Parties: When Should Litigants be Permitted to Keep Their Identities Confidential?, 37 Hastings L.J. 1, 51 (1985), a scholarly article on the subject of pseudonymous litigants: [Pjeople may have a right not to disclose their sexual histories and preferences, and a strong interest in nondisclosure. Matters of sexual identity and sexual preference are exceedingly personal_ [WJhile sex-change operations are too new to carry a long history of condemnation and stigma, the experience of homosexuals and transvestites strongly indicates a similar public response. I need cite no authority for the proposition that homosexuals in the United States today are frequently met with scorn or hatred. While transsexuality and homosexuality are not the same or even related phenomena, bigoted persons are no more likely to tolerate one than the other of these sexual practices. Homosexual plaintiffs have been permitted to litigate their cases pseudonymously to protect their privacy and to shield them from social stigmatization. In Doe v. United Services Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y.1988), a heterosexual male sued a life insurance carrier which erroneously classified him as homosexual based on certain aspects of his lifestyle, and then attempted to add a surcharge to his premium on the basis of its inaccurate categorization. In permitting plaintiff to litigate under a fictitious name, the Court reasoned that “[cjases where a party risks identification as a homosexual ... raise privacy concerns that have supported an exception to the general rule of disclosure [of the litigant’s name].” Id. at 439. Cautioning that “[c]ourts should not permit parties to proceed pseudonymously" }, { "docid": "19022606", "title": "", "text": "3:95CV00409, 1995 WL 820124, 1995 U.S.Dist. Lexis 5340, at *1-2 (D.Conn. Mar. 20, 1995); Doe v. University of Rhode Island, Civ.A. No. 93-0560B, 1993 WL 667341, at *2 (D.R.I. Dec. 28,1993). In exercising its discretion, a court should consider certain factors in determining whether plaintiffs may proceed anonymously. These factors include (1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; and (5) whether the party defending against a suit brought under a pseudonym would be prejudiced. See James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993); Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992); Bell Atlantic, 162 F.R.D. at 420; Rowe v. Burton, 884 F.Supp. 1372, 1386 (D.Alaska 1994); University of Rhode Island, 1993 WL 667341, at *2. In considering these and other factors, a court must engage in a balancing process. As the Eleventh Circuit has held, The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional ease in which a plaintiff may proceed under a fictitious name. Frank, 951 F.2d at 323 (citing Doe v. Stegall, 653 F.2d 180,186 (5th Cir.1981)). The present case is a difficult one. If the allegations of the complaint are true, plaintiff was the victim of a brutal sexual assault. Quite understandably, she does not want to be publicly identified and she has very legitimate privacy concerns. On balance, however, these concerns are outweighed by the following considerations. First, plaintiff has chosen to bring this lawsuit. She has made serious charges and has put her credibility in issue. Fairness requires that she be prepared to stand behind her charges publicly. See Bell Atlantic, 162 F.R.D. at 422. Second, this is a civil suit for damages, where plaintiff is seeking to vindicate primarily" }, { "docid": "19022607", "title": "", "text": "a balancing process. As the Eleventh Circuit has held, The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional ease in which a plaintiff may proceed under a fictitious name. Frank, 951 F.2d at 323 (citing Doe v. Stegall, 653 F.2d 180,186 (5th Cir.1981)). The present case is a difficult one. If the allegations of the complaint are true, plaintiff was the victim of a brutal sexual assault. Quite understandably, she does not want to be publicly identified and she has very legitimate privacy concerns. On balance, however, these concerns are outweighed by the following considerations. First, plaintiff has chosen to bring this lawsuit. She has made serious charges and has put her credibility in issue. Fairness requires that she be prepared to stand behind her charges publicly. See Bell Atlantic, 162 F.R.D. at 422. Second, this is a civil suit for damages, where plaintiff is seeking to vindicate primarily her own interests. This is not a criminal case where rape shield laws might provide some anonymity to encourage victims to testify to vindicate the public’s interest in enforcement of our laws. See id. (rape shield laws “apply to situations where the government chooses to prosecute a case, and offer[ ] anonymity to a victim who does not have a choice in or control over the prosecution”). Indeed, the public’s interest in bringing defendants to justice for breaking the law— assuming that they did — is being vindicated in the criminal proceedings. Third, Shakur has been publicly accused. If plaintiff were permitted to prosecute this case anonymously, Shakur would be placed at a serious disadvantage, for he would be required to defend himself publicly while plaintiff could make her accusations from behind a cloak of anonymity. See Southern Methodist Univ. Ass’n of Women Law Students, 599 F.2d at 713 (Because “the mere filing of a civil action against ... private parties may cause damage to their good names and reputation,” “[bjasic fairness” dictates that plaintiffs" }, { "docid": "21012588", "title": "", "text": "the parties.” Fed.R.Civ.P. 10(a). Moreover, the public has a right of access to judicial proceedings. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598-99, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Huminski v. Corsones, 396 F.3d 53, 80 (2d Cir.2005). Nevertheless, the federal courts have permitted a party to proceed under a pseudonym when special circumstances warrant anonymity. See, e.g., Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685-87 (11th Cir.2001); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir.2000); James v. Jacobson, 6 F.3d 233, 238-39 (4th Cir.1993); EW v. New York Blood Center, 213 F.R.D. 108, 110-12 (E.D.N.Y.2003); Javier v. Garcia-Botello, 211 F.R.D. 194, 196 (W.D.N.Y.2002); Doe v. Smith, 105 F.Supp.2d 40, 43-44 (E.D.N.Y.1999); Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y.1988). The Seventh Circuit, which disfavors the use of fictitious names, has recognized that sexual assault victims are a paradigmatic example of those entitled to a grant of anonymity. See Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir.1997) (“fictitious names are allowed when necessary to protect the privacy of ... rape victims, and other particularly vulnerable parties or witnesses”); see also Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir.2004). Whether to allow a plaintiff to proceed anonymously is within the court’s discretion. See Aware Woman Ctr., 253 F.3d at 684; Javier, 211 F.R.D. at 195; EW, 213 F.R.D. at 110. Courts will permit a party to proceed under a pseudonym where “the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Does I Thru XXIII, 214 F.3d at 1068; see Javier, 211 F.R.D. at 195; EW, 213 F.R.D. at 111; Smith, 105 F.Supp.2d at 42-44. Among the factors courts have considered in balancing these competing interests are: 1) whether the plaintiff is challenging governmental activity or an individual’s actions, 2) whether the plaintiffs action requires disclosure of information of the utmost intimacy, 3) whether identification would put the plaintiff at risk of suffering" }, { "docid": "11127993", "title": "", "text": "v. Porter, 370 F.3d 558, 560 (6th Cir.2004) (framing pseudonym issue by asking “whether a plaintiffs privacy interests substantially outweigh the presumption of open judicial proceedings”); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir.2001) (explaining that the “ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings”); Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000) (holding that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity”); M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998) (adopting a test that “weigh[s] the plaintiffs claimed right to privacy against the countervailing public interest in [open proceedings]”). We agree that the public’s interest in open proceedings must inform a district court’s pseudonymity calculus. We therefore hold that, when a party seeks to litigate under a pseudonym, a district court has an independent obligation to ensure that extraordinary circumstances support such a request by balancing the party’s stated interest in anonymity against the public’s interest in openness and any prejudice that anonymity would pose to the opposing party. With due respect for the discretion we afford to the district court’s ability to balance the relevant Jacobson factors in weighing the competing interests at stake, we conclude that the court abused its discretion in permitting Company Doe to litigate under a pseudonym. In allowing Company Doe to proceed anonymously, the district court gave no explicit consideration to the public’s interest in open judicial proceedings. As we have explained, the public interest in the underlying litigation is especially compelling given that Company Doe sued a federal agency. See Doe v. Megless, 654 F.3d 404, 411 (3d Cir.2011) (explaining that public’s interest in disclosure of plaintiffs identity was “heightened” because defendants were “public officials and government bodies” (citation omitted) (internal quotation marks omitted)); Femedeer v. Haun, 221 F.3d 1244," }, { "docid": "19022605", "title": "", "text": "hold that plaintiff could prosecute the entire lawsuit under a pseudonym. Nor do I believe that Judge Sprizzo, sitting as Part I judge on the basis of an ex parte application, intended to foreclose defendants from being heard on the issue. Rule 10(a) of the Federal Rules of Civil Procedure provides that a complaint shall state the names of all the parties. The intention of this rule is to apprise parties of who their opponents are and to protect the public’s legitimate interest in knowing the facts at issue in court proceedings. Free Market Compensation v. Commodity Exchange, Inc., 98 F.R.D. 311, 312 (S.D.N.Y.1983); see also Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y.1988); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont. 1974). Nevertheless, in some circumstances a party may commence a suit using a fictitious name. It is within a court’s discretion to allow a plaintiff to proceed anonymously. Doe v. Bell Atlantic Business Sys. Servs., Inc., 162 F.R.D. 418, 420 (D.Mass.1995); J.R. v. Farmington Bd. of Ed., Civ. No. 3:95CV00409, 1995 WL 820124, 1995 U.S.Dist. Lexis 5340, at *1-2 (D.Conn. Mar. 20, 1995); Doe v. University of Rhode Island, Civ.A. No. 93-0560B, 1993 WL 667341, at *2 (D.R.I. Dec. 28,1993). In exercising its discretion, a court should consider certain factors in determining whether plaintiffs may proceed anonymously. These factors include (1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; and (5) whether the party defending against a suit brought under a pseudonym would be prejudiced. See James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993); Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992); Bell Atlantic, 162 F.R.D. at 420; Rowe v. Burton, 884 F.Supp. 1372, 1386 (D.Alaska 1994); University of Rhode Island, 1993 WL 667341, at *2. In considering these and other factors, a court must engage in" }, { "docid": "21855333", "title": "", "text": "rule, as expressed in Rule 10(a), provides: Every pleading shall contain a caption setting forth the name of the Court, the title of the action, the file number, and a designation as in Rule 7(a). In the Complaint, the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Fed.R.Civ.P. 10(a) (emphasis added). The Eleventh Circuit has noted that “[t]his rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.” Doe v. Frank, 951 F.2d 320 (11th Cir.1992). However, under certain limited circumstances, a plaintiff may seek leave of court to proceed under a pseudonym. “The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional case in which a plaintiff may proceed under a fictitious name.” Doe v. Frank, 951 F.2d at 323 (citing Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. Unit A Aug.1981)). The Eleventh Circuit has allowed parties to proceed anonymously when the plaintiffs were challenging governmental activity, when the plaintiffs were required to disclose information of the utmost intimacy, and when the plaintiffs were compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Doe v. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The Doe v. Frank court summarized the rare instances when a plaintiff should be allowed to proceed anonymously as follows: “A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiffs identity.” 951 F.2d at 324. In deciding whether to allow a party to proceed anonymously, the trial court “should carefully review all" } ]

[ { "docid": "22034859", "title": "", "text": "the- board of general appraisers filed in the court their return, embodying the protest of November 15, 1890,’ the assistant appraiser’s report of November 28, 1890, the collector’s communication of December 16, 1890, the testimony of Daly, and the opinion and decision of the board. The case was argued before the Circuit Court, held by Judge Lacombe, which entered an order, on March 20, 1S9Í, reversing and setting aside the decision of the collector and that of the board of general appraisers, and adjudging that the merchandise should have been classified and assessed with duty at the rate of 45 per cent ad valorem, under paragraph 215 <if the act, as “ manufactures, articles, or wares, not specially enumerated or provided for in this act,' composed . . . in part of iron or steel.” The opinion of the Circuit Courtis reported in 45 Fed. .Eep. 349. It stated that there, was- no evidence that the articles were ev¿r assembled or brought together with the gun-barrels on the other side; that there was no finding to. that effect by the appraisers ; ■ that if there were such a finding of fact, the court would be constrained to reverse it, because there was no evidence in the record to support it; that, for all that appeared, the gunstocks might have' been bought from one manufacturer and the gun-barrels from another; that the tariff act laid a duty upon “ sporting, breeph-loading shotguns,” and laid a separate and different dutyVpon the parts of which such shotguns were composed, as mánufactures in whole or in part of metal; that it could be fairly assumed that Congress, by that terminology, meant to allow importers who'chose to do so, 7to bring in fragments of a combination article by different shipments, and then to employ domestic labor in’ putting them together; that it might have been intended to induce importers to employ to that extent the labor of this country, instead of having the article combined abroád; that, under the language of the statute, there was .nothing in the shipment in question except gun-stocks mounted," } ]

[ { "docid": "16339841", "title": "", "text": "assume that the question of whether or not plaintiff’s exhibit 1-A is a shirt is no longer in contention. In substance, the testimony given by the witnesses for the plaintiff, who have all had experience in the production and sale of merchandise such as is here involved, tends to establish on the primary issue that the subject cabana sets were styled in this country, but manufactured in Japan. The items were designed as a unit, matched as to color, print, and fabric; imported as a unit, pinned together; invoiced as a unit; and invariably sold as a unit, both at wholesale and by retail establishments. They are inexpensive articles of children’s apparel, which have very little, if any, value when separated. They do not even warrant the expense of removing the pins which attach the two pieces together, and should one of the parts be damaged, the entire set would ordinarily be returned for credit or replacement. As stated by witness Leon Swergold, one of tbe original owners of plaintiff company: * *\" * 'When we get one of them back, it is impossible to replace them because you cannot match to1 make a set out of it, so generally we put it in the waste basket or we give it away to a charity. It cannot be sold separately. Although the evidence preponderates that these outfits were coordinated tó bé sold and worn'ás single units, there is, nevertheless, testimony to the effect that, in the last analysis, the taste of the wearer must ultimately dictate whether the parts are always worn as a unit or are, in fact, interchanged with other shirts or shorts, as the case may be. From the foregoing uncontroverted facts, it must be determined whether the present importation is to be regarded as composed of two-part units constituting single entities for customs purposes, or as consisting of separate articles, individually dutiable. That is to say, we are here required to consider whether or not the subject cabana sets are entireties for purposes of classification within the tariff laws of the United States. \"While the question" }, { "docid": "13712203", "title": "", "text": "315, 318, T.D. 41232 (1925): * * * if an importer brings into the country, at the same time, certain parts, which are designed to form, when joined or attached together, a complete article of commerce, and when it is further shown that the importer intends to so use them, these parts will be considered for tariff purposes as entireties, even though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be salable separately. [Emphasis added.] Plaintiff, in support of its contention that the chassis and tape players should be classified as a single entity (viz., a combination chassis/tape player) relies upon the record evidence pointing to the integrated design characteristics of the merchandise, both physical and electronic (especially respecting power and amplification), the functional interplay between the components, and their lack of separate commercial use with non-Morse products absent impracticable modifications. Defendant, on the other hand, urges that the entireties doctrine has no application to the particular chassis and tape players in this case because the combination alone does not constitute a “complete article of commerce”. I agree with defendant’s position. The subject radio chassis and tape players, although unassem-bled when imported, were shown by plaintiff to be designed and intended to be connected by a nine pin plug and socket; and the evidence establishes that the tape player is designed to operate through the audio section of the chassis, while the power of the tape unit is in large measure supplied by the chassis. However, functional interplay and dependence of one component on another, while frequently indicative of an entirety, are not dispositive criteria in the present case. It is now well settled that separate components covered by the same entry, although designed and intended to be used together, are not properly classifiable as an entirety where the components do not comprise a complete commercial entity, but instead must be assembled with additional components to form a complete article of commerce. Thus, in Stella D’Oro Biscuit Co. v. United States, 65 CCPA 52, C.A.D. 1205, 570 F.2d" }, { "docid": "18933201", "title": "", "text": "and each item incorporates a wool knit fabric. In style 200, plaintiff’s exhibit 3, the color of the piping, trim, and buttons of the jacket, all of leather, match the color of the knitted shell and pant components. Again, special care was taken to ensure that the color match was as close as possible. The purchase contracts covering the merchandise at issue clearly demonstrate that the suits were purchased by plaintiff as sets. The official papers show that the imported suits were invoiced, packed and imported as sets. In fact the only -reason the invoices listed separate values was to satisfy a request of the Customs Service. The testimony shows that the suits were packed as sets; this is corroborated by the representative polybags in which the subject pant suits were shipped as a unit as required by the sales contract. As we have seen, style 200 was advertised as a set and both styles 200 and 7205 were sold at retail as sets. The suits were-not broken up to accommodate a cüstomer with a size problem and they were displayed in the retail stores as sets. The record also demonstrates that those of the imported suits which were not salable because of defécts in one or more of their components were returned as sets and were not broken up and sold as separate articles. The testimony shows further that the jacket'in style 200 and the shells and pants in both pant sets could be worn individually or in combination with other articles and that articles of wearing apparel similar to the components of the subject suits are sold separately. This, however, does not preclude the imported articles from being classified as entireties. As the court made clear in the Altman case, supra, 13 Ct. Cust. Appls. at 318, an article may be an entirety “even though * * * [the] parts might have a commercial value and be salable separately.” Likewise in Nissho American, supra, this court held that the sets therein involved were entireties even though the ultimate consumer may use components of the shirt and longie sets" }, { "docid": "12149592", "title": "", "text": "a new entity. In the course of its opinion, the court noted that even where the elements of mechanical coupling, functional interplay, and unified packaging were present, the merchandise might not be an entirety; that the missing ingredient might be the elusive concept of merger and subordination of identity. In Miniature Fashions, Inc. v. United States, 54 CCPA 11, C.A.D. 894, the court held that cabana sets, consisting of shirts and shorts, were entireties, on the ground that they were designed as a unit, matched as to color, print, and fabric, imported and sold as a unit, and when the parts were seperated and returned for credit, the parts were either given to charity or placed in the wastebasket. The court concluded that the parts had no commercial value except when joined as a unit. In the course of the opinion, the court said: From the authorities discussed in the opinions below and the argument presented here, it is apparent that the doctrine of entireties is to be used as an aid to ascertain proper classification. Where Congress has not created an express classification to govern, the problem is one of ascertaining the most suitable classification. The result reached in Lang appears to place the doctrine of entireties in its proper perspective. Thus whatever criteria from the doctrine of entireties is applied, e.g., “function,” “use,” “individual entities,” “newly created entity,” “intent,” “design,” or “commercial unit,” such criteria may not circumvent the intent of Congress. In United States v. Altray Company, 54 CCPA 107, C.A.D. 919, the merchandise consisted of miniature artificial Christmas trees, each about 2 inches high and adhesively affixed at the base to a foil-wrapped chocolate wafer. The court pointed out that the mere fact that articles may be bought, sold, and used together in sets, does not require that they be regarded as entireties for tariff purposes, and stated: Mere juxtaposition at importation or in trade does not preclude further analysis. The difficulty is in the selection of appropriate standards for that analysis. It is suggested that the dispositive consideration is whether the identity of the individual" }, { "docid": "18933198", "title": "", "text": "which are designed to form, when joined or attached together, a complete article of commerce, and when it is. further shown that the importer intends to so use them, these-, parts will be considered for tariff purposes as entireties, even, though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be-salable separately. [Emphasis added.] More specifically, so far as the present case is concerned, recent, decisions have held that multiple components of wearing apparel were-entireties for tariff purposes when certain guidelines or criteria were-satisfied. Thus, in Miniature Fashions, Inc. v. United States, supra, 54 CCPA 11, the court held that certain cabana sets which consisted-of shirts and shorts were entireties. In so holding the court noted the-following: the sets were designed as a unit; they were matched as to, color, print and fabric; they were imported as a unit; they were, pinned together; they were invoiced as a unit; they were sold as a. unit; the individual components of the set had no commercial value-except as.part of a unit; and individual components of the set were, not resold as individual articles. To similar effect is the decision in The Nissho American Corp. v. United States, 64 Cust. Ct. 378, C.D. 4005 (1970), appeal dismissed, 57 CCPA 141 (1970) which concerned the question a¡s to whether boys, flannel shirts and corduroy pants called shirt and 1'ongie sets were entireties. The court held that the shirts and p^.n(s wfire entireties, stating (64 Cust. Ct. at 381-82): The record thus establishes that the shirt and longie set herein was designed, purchased, imported, and invoiced as a unit. The two pieces were matched as to color, print and fabric. The merchandise was advertised to retail customers as a set and was so sold both at wholesale and at retail. It was never broken up and the items sold separately. If returned by a customer, it would be resold as a set or if defective, destroyed or given to charity. While the shirt portion is a shirt and the trouser portion trousers and the" }, { "docid": "18933076", "title": "", "text": "and were imported in sets. Each set, sold at wholesale and at retail as a set on a hanger, was designed as a unit to be worn together. They were offered in sets to satisfy a consumer demand for coordinated underwear. The upper portion was distinct from sized and structured brassieres which were sold separately. Defendant submits that the facts of the Miniature Fashions and Deringer cases are clearly distinguishable from those presented here. It indicates that the merchandise in the cases cited was matched clothing and, when coordinated by color, print and fabric, created a new article of commerce. The bars and the glassware are not “matched” in any corresponding way. In the present case the components of the unit retain their separate and distinct functions: the bars for serving and storing beverages and the glasses for drinking. Numerous cases can be readily cited that discuss the customs law doctrine of entireties. Although the doctrine may be formulated clearly, its application is not always free from doubt. The difficulty of application is noted in Lafayette Radio Electronics Corp. v. United States, 57 CCPA 62, C.A.D. 977, 421 F. 2d 751 (1970) wherein the Court of Customs and Patent Appeals stated: “* * * ^ere are no ironclad rules of universally applicable principles for determining whether merchandise should be classified and dutied as entireties. * * *”57 CCPA at 66. As stated by the appellate court in the Miniature Fashions case: “The lower court stated, and we agree: ‘The difficulty which is experienced in this type of case is not so much the formulation of a workable rule as it is the application of the provisions thereof to a given factual situation. Where it is apparent that the components of an importation have no useful function until joined into a single entity, it is, of course, relatively easy to say that the result constitutes an entirety. Where, however the several components of a unit are to any extent alone susceptible of a separate use, the question of whether their individual identities are subordinated to the newly created entity is not" }, { "docid": "12149595", "title": "", "text": "part of the sink to which it is attached. The base can be used without the strainer-stopper involved here, with other types of stoppers and strainers. While the strainer-stopper must rest on a base in order to be utilized, the base need not be the one before the court, but may be one of a different type as long as it has a 3%-inch opening. Each of the articles performs its own separate function whether used together or separately. The base permanently joins the sink outlet to the plumbing waste outlet. The strainer-stopper operates either as a strainer or as a stopper when used with appropriate openings just like other strainers and stoppers. Each of the articles is bought and sold separately as well as in combination. According to Mrs. Colleluori, even when the two articles are imported in combination, the set is sometimes broken up and each item sold separately. Many more of the strainer-stoppers are bought and sold than the combination or the base alone. Each of the items has a separate commercial value. The items have not been merged to form a new commercial entity nor has the identity of either been subordinated to that of the combination. In our view, the most suitable classification for the strainer-stopper is as a household utensil and not as part of an entirety with the base, which, after installation, becomes a permanent part of a sink. In reaching this conclusion, we have given due weight to the factual evidence of record. We are in accord with the trial judge that the proffered testimony as to the reasons why the articles were sold in a certain fashion is not properly admissible. It is, therefore, stricken from the record. We conclude that the merchandise involved herein consists of two separate tariff entities, a strainer-stopper and a base, and is not an entirety. The strainer-stopper should have been separately assessed with duty at 10 per centum ad valorem under paragraph 339 of the Tariff Act of 1930, as modified, as a household utensil in chief value of brass. Since the merchandise was appraised" }, { "docid": "13712202", "title": "", "text": "the tape player derives its power from the chassis, and a heavy duty transformer in the chassis supplies the power needed by the tape player. Additionally, the tape player depends on the chassis for amplification. Finally, the tape player is switched on and off at the chassis. Essentially, the tape player is a “slave unit” in the sense that such tape player “is not a complete operative system without the receiver.” (R. 149). III. The main problem here, as in all cases involving the issue of en-tireties, is that “there are no ironclad rules or universally applicable principles for determining whether merchandise should be classified and dutied as entireties”, and there are a number of criteria to be considered which may lead to “contrary conclusions depending what critieria are given controlling effect”. In the leading case of Miniature Fashions, Inc. v. United States, 54 CCPA 11, C.A.D. 894 (1966), our Appellate Court cited the following oft-quoted explanation of the law of entireties enunciated in Altman & Co. v. United States, 13 Ct. of Cust. Appls., 315, 318, T.D. 41232 (1925): * * * if an importer brings into the country, at the same time, certain parts, which are designed to form, when joined or attached together, a complete article of commerce, and when it is further shown that the importer intends to so use them, these parts will be considered for tariff purposes as entireties, even though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be salable separately. [Emphasis added.] Plaintiff, in support of its contention that the chassis and tape players should be classified as a single entity (viz., a combination chassis/tape player) relies upon the record evidence pointing to the integrated design characteristics of the merchandise, both physical and electronic (especially respecting power and amplification), the functional interplay between the components, and their lack of separate commercial use with non-Morse products absent impracticable modifications. Defendant, on the other hand, urges that the entireties doctrine has no application to the particular chassis and tape players in this" }, { "docid": "669660", "title": "", "text": "of the bars together with the glassware was imported, designed, purchased, priced, advertised, sold at wholesale and retail, and used as a unit. Defendant asserts that the record falls short of establishing that the bars and glassware were designed as a unit. Moreover, defendant submits that the facts fail to show that there has been a merger of their functions creating a new articlé of commerce as required by the customs law doctrine of entireties. In support of its contention, plaintiff argues that the facts closely resemble those of three recently decided cases: Miniature Fashions, Inc. v. United States, 54 CCPA 11, C.A.D. 894 (1966), The Nissho American Corp. v. United States, 64 Cust.Ct. 378, C.D. 4005 (1970), appeal dismissed, 57 CCPA 141 (1970) and A. N. Deringer, Inc. v. United States, 71 Cust.Ct. 103, C.D. 4482 (1973). In the Miniature Fashions, Inc. case, the imported merchandise consisted of “cabana sets” described as “two-piece shirt-short sets.” The appellate court, reversing the decision of this court, held that the garments were classifiable as an entirety since the evidence established that they were designed as a unit, matched as to color, print and fabric, imported as a unit and pinned together, invoiced as a unit, and sold as a unit both in wholesale and retail channels. On the authority of the Miniature Fashions case, this court decided that the merchandise in the Nissho and Deringer cases was also properly dutiable as entireties. In the Nissho case, the imported merchandise consisted of shirts, which were part of a shirt and longie set. They consisted of a boy’s plaid flannel shirt and corduroy pants lined with the same plaid material as the shirt, and having the pocket trimmed with the same material. They were designed, purchased, imported, invoiced, advertised, and sold at wholesale and retail as a unit, and not separately. The merchandise in the Deringer case consisted of so-called “bra-kini” sets. The sets consisted of unstructured brassieres of stretch material intended to fit all, or a number of sizes, and bikini pants. They were matched as to fabric, color, print, and trim, and" }, { "docid": "12149591", "title": "", "text": "Cust. Ct. 529, C.D. 3221. After discussing many cases, it concluded: While it is difficult to di'aw generalizations, the cases cited indicate that where all of the entities in a combination are complete in themselves and are capable of separate use, the unit is not an entirety, but that where at least one of the entities has no separate commercial value or separate use, the combination is an entirety. The court there held that a combination consisting of a glass dish, a spoon, and a holder was an entirety, since the holder had no commercial value and no use by itself, and when the other articles were added, the unit became a useful article for the service of jam or condiments, the purpose for which it was intended. In another recent case, Silvine Importers, Inc. v. United States, 57 Cust. Ct. 362, C.D. 2821, this court held that electric brewmasters were separate entities from detachable electric cords since the cords could be used with other appliances and their identity and function were not lost in a new entity. In the course of its opinion, the court noted that even where the elements of mechanical coupling, functional interplay, and unified packaging were present, the merchandise might not be an entirety; that the missing ingredient might be the elusive concept of merger and subordination of identity. In Miniature Fashions, Inc. v. United States, 54 CCPA 11, C.A.D. 894, the court held that cabana sets, consisting of shirts and shorts, were entireties, on the ground that they were designed as a unit, matched as to color, print, and fabric, imported and sold as a unit, and when the parts were seperated and returned for credit, the parts were either given to charity or placed in the wastebasket. The court concluded that the parts had no commercial value except when joined as a unit. In the course of the opinion, the court said: From the authorities discussed in the opinions below and the argument presented here, it is apparent that the doctrine of entireties is to be used as an aid to ascertain proper" }, { "docid": "18933197", "title": "", "text": "in Miniature Fashions, Inc. v. United States, 54 CCPA 11, 15, C.A.D. 894 (1966): The difficulty which is experienced in this type of case is not so much the formulation of a workable rule as it is the application of the provisions thereof to a given factual situation. Where it is. apparent that the components of an importation have no useful function until joined into a single entity, it is, course, relatively easy to say that the result constitutes an entirety. Where,, however, the several components of a unit are to any extent, alone susceptible to a separate use, the question of whether-their individual identities are subordinated to the newly created, entity is not so readily answered. In determining whether an importation is an entirety the actual nature of the imported commercial entity must be the determining factor. As our appellate court noted in Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, 318, T.D. 41232 (1925): * * * [I]f an importer brings into the country, at the same time,, certain parts, which are designed to form, when joined or attached together, a complete article of commerce, and when it is. further shown that the importer intends to so use them, these-, parts will be considered for tariff purposes as entireties, even, though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be-salable separately. [Emphasis added.] More specifically, so far as the present case is concerned, recent, decisions have held that multiple components of wearing apparel were-entireties for tariff purposes when certain guidelines or criteria were-satisfied. Thus, in Miniature Fashions, Inc. v. United States, supra, 54 CCPA 11, the court held that certain cabana sets which consisted-of shirts and shorts were entireties. In so holding the court noted the-following: the sets were designed as a unit; they were matched as to, color, print and fabric; they were imported as a unit; they were, pinned together; they were invoiced as a unit; they were sold as a. unit; the individual components of the set had no commercial" }, { "docid": "18933202", "title": "", "text": "size problem and they were displayed in the retail stores as sets. The record also demonstrates that those of the imported suits which were not salable because of defécts in one or more of their components were returned as sets and were not broken up and sold as separate articles. The testimony shows further that the jacket'in style 200 and the shells and pants in both pant sets could be worn individually or in combination with other articles and that articles of wearing apparel similar to the components of the subject suits are sold separately. This, however, does not preclude the imported articles from being classified as entireties. As the court made clear in the Altman case, supra, 13 Ct. Cust. Appls. at 318, an article may be an entirety “even though * * * [the] parts might have a commercial value and be salable separately.” Likewise in Nissho American, supra, this court held that the sets therein involved were entireties even though the ultimate consumer may use components of the shirt and longie sets separately with other trousers or slacks (64 Cust. Ct. at 382) and “even though it is possible to wear the items separately.” Id. at 383. In summary, it is noted that the subject suits were designed, purchased, imported and invoiced as a unit. The three pieces were coordinated or matched as to color and matched as to size.- The merchandise was advertised to retail customers as a set and was so sold at retail. It was never broken up and the items sold separately. If returned by a store, it would be resold as a set, or if defective, disposed of by salvage or donated to a church or charity. In light of the above, it must be concluded that the imported suits are entireties for tariff purposes. The defendant has cited an exhaustive list of cases to establish its contention that the importations are not entireties; however, only one such case deals with wearing apparel. In that case, United States v. Schoen & Co., Inc., 20 CCPA 370, T.D. 46133 (1933), certain embroidered blouses" }, { "docid": "669661", "title": "", "text": "the evidence established that they were designed as a unit, matched as to color, print and fabric, imported as a unit and pinned together, invoiced as a unit, and sold as a unit both in wholesale and retail channels. On the authority of the Miniature Fashions case, this court decided that the merchandise in the Nissho and Deringer cases was also properly dutiable as entireties. In the Nissho case, the imported merchandise consisted of shirts, which were part of a shirt and longie set. They consisted of a boy’s plaid flannel shirt and corduroy pants lined with the same plaid material as the shirt, and having the pocket trimmed with the same material. They were designed, purchased, imported, invoiced, advertised, and sold at wholesale and retail as a unit, and not separately. The merchandise in the Deringer case consisted of so-called “bra-kini” sets. The sets consisted of unstructured brassieres of stretch material intended to fit all, or a number of sizes, and bikini pants. They were matched as to fabric, color, print, and trim, and were imported in sets. Each set, sold at wholesale and at retail as a set on a hanger, was designed as a unit to be worn together. They were offered in sets to satisfy a consumer demand for coordinated underwear. The upper portion was distinct from sized and structured brassieres which were sold separately. Defendant submits that the facts of the Miniature Fashions and Deringer cases are clearly distinguishable from those presented here. It indicates that the merchandise in the cases cited was matched clothing and, when coordinated by color, print and fabric, created a new article of commerce. The bars and the glassware are not “matched” in any corresponding way. In the present case the components of the unit retain their separate and distinct functions: the bars for serving and storing beverages and the glasses for drinking. Numerous cases can be readily cited that discuss the customs law doctrine of entire-ties. Although the doctrine may be formulated clearly, its application is not always free from doubt. The difficulty of application is noted in Lafayette" }, { "docid": "16339842", "title": "", "text": "we get one of them back, it is impossible to replace them because you cannot match to1 make a set out of it, so generally we put it in the waste basket or we give it away to a charity. It cannot be sold separately. Although the evidence preponderates that these outfits were coordinated tó bé sold and worn'ás single units, there is, nevertheless, testimony to the effect that, in the last analysis, the taste of the wearer must ultimately dictate whether the parts are always worn as a unit or are, in fact, interchanged with other shirts or shorts, as the case may be. From the foregoing uncontroverted facts, it must be determined whether the present importation is to be regarded as composed of two-part units constituting single entities for customs purposes, or as consisting of separate articles, individually dutiable. That is to say, we are here required to consider whether or not the subject cabana sets are entireties for purposes of classification within the tariff laws of the United States. \"While the question of what constitutes an entirety has given rise to much perplexing litigation over the course of the years, the principle to be applied in such cases has not lacked artful expression. It was said, in Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D. 41232: * * * if an importer brings into tbe country, at tbe same time, certain parts, which are designed to form, when joined or attached together, a complete article of commerce, and when it is further shown that the importer intends to so use them, these parts will be considered for tariff purposes as entireties, even though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be salable separately. Involved in the Altman case was an importation, in separate packages, of untrimmed corsets and lace trimmings, the latter so labeled as to indicate the particular corset to which it was to be attached. In reaching the conclusion that the corsets and trimmings were entireties, within the" }, { "docid": "18933199", "title": "", "text": "value-except as.part of a unit; and individual components of the set were, not resold as individual articles. To similar effect is the decision in The Nissho American Corp. v. United States, 64 Cust. Ct. 378, C.D. 4005 (1970), appeal dismissed, 57 CCPA 141 (1970) which concerned the question a¡s to whether boys, flannel shirts and corduroy pants called shirt and 1'ongie sets were entireties. The court held that the shirts and p^.n(s wfire entireties, stating (64 Cust. Ct. at 381-82): The record thus establishes that the shirt and longie set herein was designed, purchased, imported, and invoiced as a unit. The two pieces were matched as to color, print and fabric. The merchandise was advertised to retail customers as a set and was so sold both at wholesale and at retail. It was never broken up and the items sold separately. If returned by a customer, it would be resold as a set or if defective, destroyed or given to charity. While the shirt portion is a shirt and the trouser portion trousers and the ultimate consumer may use them separately with other trousers or slacks, it is clear that they were designed and merchandised as a set to be worn together. [Emphasis added.] Also, in A. N. Deringer, Inc. v. United States, 71 Cust. Ct. 103, C.D. 4482 (1973) the court found that certain \"bra-kini” sets consisting of a brassiere and bikini pants were entireties. In reaching this conclusion, the court considered the following factors determinative: the articles were designed to be worn together; they were sold in sets; and they were displayed in sets. See also W. T. Grant Co. v. United States, 74 Cust. Ct. 3, C.D. 4579 (1975). Turning now to the present case, an examination of plaintiff’s exhibits 3 and 4 clearly reveals that the components of both of the imported pant suits are coordinated in a manner which creates a complete outfit. With respect to style 7205, plaintiff’s exhibit 4, the three components of the suit are the same color, care having been taken to match the color of the leather and wool materials" }, { "docid": "18933074", "title": "", "text": "the bars together with the glassware was imported, designed, purchased, priced, advertised, sold at wholesale and retail, and used as a unit. Defendant asserts that the record falls short of establishing that the bars and glassware were designed as a unit. Moreover, defendant submits that the facts fail to show that there has been a merger of their functions creating a new article of commerce as required by the customs law doctrine of entireties. In support of its contention, plaintiff argues that the facts closely resemble those of three recently decided cases: Miniature Fashions, Inc. v. United States, 54 CVPA 11, C.A.D. 894 (1966), The Nissho American Corp. v. United States, 64 Cust. Ct. 378, C.D. 4005 (1970), appeal dismissed, 57 CCPA 141 (1970) and A. N. Deringer, Inc. v. United States, 71 Cust. Ct. 103, C.D. 4482 (1973). In the Miniature Fashions, Inc. case, the imported merchandise consisted of “cabana sets” described as “two-piece shirt-short sets.” The appellate court, reversing the decision of this court, held that the garments were classifiable as an entirety since the evidence established that they were designed as a unit, matched as to color, print and fabric, imported as a unit and pinned together, invoiced as a unit, and sold as a unit both in wholesale and retail channels. On the authority of the Miniature Fashions case, this court decided that the merchandise in the Nissho and Deringer cases was also properly dutiable as entireties. In the Nissho case, the imported merchandise consisted of shirts, which were part of a shirt and longie set. They consisted of a boy’s plaid flannel shirt and corduroy pants lined with the same plaid material as the shirt, and having the pocket trimmed with the same •material. They were designed, purchased, imported, invoiced, advertised, and sold at wholesale and retail as a unit, and not separately. The merchandise in the Deringer case consisted of so-called “bra-kini” sets. The sets consisted of unstructured brassieres of stretch material intended to fit all, or a number of sizes, and bikini pants. They were matched as to fabric, color, print, and trim," }, { "docid": "16339840", "title": "", "text": "plaintiff, at the trial of this case, two being affiliated with the importer; the third, a member of the firm which produced said illustrative exhibit 2. No evidence was offered by the defendant. At the outset of the trial, counsel for plaintiff advised the court that his proof would be presented in support of two propositions, namely and principally, that the articles at bar are commercial entireties, and, secondly, that the upper portion is not a shirt, as that term is used in the tariff act or in the trade and commerce of this country. While, indeed, some of the testimony thereafter elicited from the witnesses related to the question of whether or not plaintiff’s exhibit 1-A might properly be termed a shirt, and the substance of the witnesses’ statements on this subject were reviewed in the briefs of respective counsel, it does not appear that plaintiff actually relies upon this issue, since the matter is not pressed in either of the two briefs submitted on behalf of plaintiff. Accordingly, it is our intention to assume that the question of whether or not plaintiff’s exhibit 1-A is a shirt is no longer in contention. In substance, the testimony given by the witnesses for the plaintiff, who have all had experience in the production and sale of merchandise such as is here involved, tends to establish on the primary issue that the subject cabana sets were styled in this country, but manufactured in Japan. The items were designed as a unit, matched as to color, print, and fabric; imported as a unit, pinned together; invoiced as a unit; and invariably sold as a unit, both at wholesale and by retail establishments. They are inexpensive articles of children’s apparel, which have very little, if any, value when separated. They do not even warrant the expense of removing the pins which attach the two pieces together, and should one of the parts be damaged, the entire set would ordinarily be returned for credit or replacement. As stated by witness Leon Swergold, one of tbe original owners of plaintiff company: * *\" * 'When" }, { "docid": "669662", "title": "", "text": "were imported in sets. Each set, sold at wholesale and at retail as a set on a hanger, was designed as a unit to be worn together. They were offered in sets to satisfy a consumer demand for coordinated underwear. The upper portion was distinct from sized and structured brassieres which were sold separately. Defendant submits that the facts of the Miniature Fashions and Deringer cases are clearly distinguishable from those presented here. It indicates that the merchandise in the cases cited was matched clothing and, when coordinated by color, print and fabric, created a new article of commerce. The bars and the glassware are not “matched” in any corresponding way. In the present case the components of the unit retain their separate and distinct functions: the bars for serving and storing beverages and the glasses for drinking. Numerous cases can be readily cited that discuss the customs law doctrine of entire-ties. Although the doctrine may be formulated clearly, its application is not always free from doubt. The difficulty of application is noted in Lafayette Radio Electronics Corp. v. United States, 421 F.2d 751, 57 CCPA 62, C.A.D. 977 (1970) wherein the Court of Customs and Patent Appeals stated: “ * * * there are no ironclad rules or universally applicable principles for determining whether merchandise should be classified and dutied as entireties. * ” 421 F.2d at 754, 57 CCPA at 66. As stated by the appellate court in the Miniature Fashions ease: “The lower court stated, and we agree: ‘The difficulty which is experienced in this type of case is not so much the formulation of a workable rule as it is the application of the provisions thereof to a given factual situation. Where it is apparent that the components of an importation have no useful function until joined into a single entity, it is, of course, relatively easy to say that the result constitutes an entirety. Where, however the several components of a unit are to any extent alone susceptible of a separate use, the question of whether their individual identities are subordinated to the newly created" }, { "docid": "18933075", "title": "", "text": "since the evidence established that they were designed as a unit, matched as to color, print and fabric, imported as a unit and pinned together, invoiced as a unit, and sold as a unit both in wholesale and retail channels. On the authority of the Miniature Fashions case, this court decided that the merchandise in the Nissho and Deringer cases was also properly dutiable as entireties. In the Nissho case, the imported merchandise consisted of shirts, which were part of a shirt and longie set. They consisted of a boy’s plaid flannel shirt and corduroy pants lined with the same plaid material as the shirt, and having the pocket trimmed with the same •material. They were designed, purchased, imported, invoiced, advertised, and sold at wholesale and retail as a unit, and not separately. The merchandise in the Deringer case consisted of so-called “bra-kini” sets. The sets consisted of unstructured brassieres of stretch material intended to fit all, or a number of sizes, and bikini pants. They were matched as to fabric, color, print, and trim, and were imported in sets. Each set, sold at wholesale and at retail as a set on a hanger, was designed as a unit to be worn together. They were offered in sets to satisfy a consumer demand for coordinated underwear. The upper portion was distinct from sized and structured brassieres which were sold separately. Defendant submits that the facts of the Miniature Fashions and Deringer cases are clearly distinguishable from those presented here. It indicates that the merchandise in the cases cited was matched clothing and, when coordinated by color, print and fabric, created a new article of commerce. The bars and the glassware are not “matched” in any corresponding way. In the present case the components of the unit retain their separate and distinct functions: the bars for serving and storing beverages and the glasses for drinking. Numerous cases can be readily cited that discuss the customs law doctrine of entireties. Although the doctrine may be formulated clearly, its application is not always free from doubt. The difficulty of application is noted in" }, { "docid": "11047445", "title": "", "text": "finds the following: that no two Systems are identical; that every System is unique based on the number of cows, size of the farm and the farm’s layout; that all the components from the six entries are placed in inventory and organized according to part number; that components in inventory are sold either separately as replacement or supplemental parts or in combination as part of a complete system; that all inventoried parts are used interchangeably and each has a separate value or price; and that the end use of a component can not be determined until after it is imported, placed in inventory and used to fill an order. 1 Plaintiff claims that certain components contained in Entry No. 84-576926-3 can be used to construct several complete Systems and asserts these components imported together should be classified together as complete units under the doctrine of entire-ties. “[T]here are no ironclad rules or universally applicable principles for determining whether merchandise should be classified and dutied as entireties.” Lafayette Radio Elecs. Corp. v. United States, 57 CCPA 62, 66, C.A.D. 977, 421 F.2d 751 (1970). The various criteria that have evolved often can result in “contrary conclusions depending on what criteria are given controlling effect.” Miniature Fashions, Inc. v. United States, 54 CCPA 11, 17, C.A.D. 894 (1966). The Court is guided in reaching a decision by an explanation of the law of entireties given in Altman & Co. v. United States, 13 Ct.Cust.App. 315, 318, T.D. 41,232 (1925): if an importer brings into the country, at the same time, certain parts, which are designed to form, when joined or attached together, a complete article of commerce, and when it is further shown that the importer intends to so use them, these parts will be considered for tariff purposes as entireties, even though they may be unattached or inclosed in separate packages, and even though said parts might have a commercial value and be salable separately. The Systems are developed from components in inventory, but it would be wholly fortuitous if all the components used in one System came from Entry No." } ]

[ { "docid": "17691297", "title": "", "text": "sponte dismissal of a pro se complaint should be based specifically on a section 1915(d) determination of frivolousness or maliciousness, dismissal is appropriate in the proper case even absent a specific statement of such finding by the district court. Recently, in Harris v. Dept, of Justice, 680 F.2d 1109 (5th Cir.1982), appeal was taken from a section 1915(d) dismissal where the lower court had dismissed the plaintiffs complaint “due to the perplexing state of her thirty-six page complaint and because of her utter failure to conform to the most elemental provisions of F.R.Civ.P. 8.” 680 F.2d at 1110. On appeal, this court found that the complaint was frivolous and upheld the dismissal. Similarly, in Shaw v. Briscoe, 541 F.2d 489 (5th Cir.1976), the district court dismissed a pro se section 1983 complaint on the basis of stare decisis. This court upheld that dismissal, stating simply that the plaintiff could “prove no set of facts” entitling him to relief. 541 F.2d at 490. We emphasize here, however, that dismissal of a pro se complaint prior to service of process should in most cases follow a specific determination under section 1915(d) that the complaint is “frivolous or malicious.” See Holloway v. Gunnell, 685 F.2d 150, 152 (5th Cir.1982). . This is the most serious allegation contained in the complaint which falls outside the scope of the Givhan class action. The only other portion of the complaint which falls outside Givhan is the prayer for injunctive relief to allow the plaintiff unrestricted use of the prison library “every working day during the pendency of this law suit.” The complaint contains absolutely no allegation that the plaintiff was wrongfully denied use of the library. This prayer for injunctive relief, absent more, does not implicate any arguable constitutional violation. See McDonald v. Hall, 610 F.2d 16, 19 (1st Cir.1974). . Nor can we, even construing the complaint with the requisite liberality, assume physical violence. That liberality does not allow us to conjure up unpled allegations. Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783" } ]

[ { "docid": "8722306", "title": "", "text": "PER CURIAM: Benjamin Franklin Phillips, an Alabama state prisoner, brings this 42 U.S.C. § 1983 (1982) action in forma pauperis against a state court judge and the attorneys who represented him in a state court criminal proceeding before another judge. The district court, acting upon a magistrate’s recommendation, summarily dismissed the action as frivolous before service of process on the defendants pursuant to 28 U.S.C. § 1915(d) (1982). We affirm. I. Following Phillips’ conviction in state court, he brought a state court action for legal malpractice against the attorneys who represented him during his criminal proceedings. Judge Mashburn dismissed the malpractice case. Phillips, proceeding in forma pauperis and pro se, then filed this suit in the district court under 42 U.S.C. § 1983 (1982), claiming that Judge Mashburn and the defendant attorneys conspired together to deprive Phillips of his right to pursue his malpractice action in the courts. The conspiracy was alleged in a conclusory manner without any operative facts. Phillips sought $400,000 in damages. The Magistrate recommended that Phillips’ motion to proceed in forma pauperis be granted and that his complaint be summarily dismissed as frivolous for attempting to retry the state court malpractice litigation under the auspices of section 1983. The district court dismissed the action without prejudice and denied leave to appeal in forma pauperis. This court granted the motion to appeal in forma pauperis. II. 28 U.S.C. § 1915(a) (1982) allows a person, unable to afford the cost of litigation, to commence an action in federal court without the prepayment of fees. The court, however, has a special measure of control to ensure this privilege is not abused; 28 U.S.C. § 1915(d) provides that in forma pauperis proceedings may be dismissed sua sponte by the court “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Dismissal of a pro se complaint by a prisoner pursuant to section 1915(d) involves competing policy considerations. On the one hand, access to the federal courts is necessary to protect the prisoner’s constitutional rights. See Harmon v. Berry, 728 F.2d 1407, 1409 (11th" }, { "docid": "8722307", "title": "", "text": "pauperis be granted and that his complaint be summarily dismissed as frivolous for attempting to retry the state court malpractice litigation under the auspices of section 1983. The district court dismissed the action without prejudice and denied leave to appeal in forma pauperis. This court granted the motion to appeal in forma pauperis. II. 28 U.S.C. § 1915(a) (1982) allows a person, unable to afford the cost of litigation, to commence an action in federal court without the prepayment of fees. The court, however, has a special measure of control to ensure this privilege is not abused; 28 U.S.C. § 1915(d) provides that in forma pauperis proceedings may be dismissed sua sponte by the court “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Dismissal of a pro se complaint by a prisoner pursuant to section 1915(d) involves competing policy considerations. On the one hand, access to the federal courts is necessary to protect the prisoner’s constitutional rights. See Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir.1984). To protect such access, pro se complaints are liberally construed, and the lay pleader is not held to the more rigorous standard for formal pleadings prepared by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Harmon, 728 F.2d at 1409. This circuit has adopted the standard in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), to determine the sufficiency of a complaint for purposes of section 1915(d), i.e., that “ ‘a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.1983) (quoting Conley v. Gibson, supra). The trial court must develop the facts of the pro se case until satisfied about its lack of merit before dismissal under section 1915(d). Jones v. Bales, 58 F.R.D. 453, 464 (N.D.Ga.1972) aff'd, 480 F.2d 805 (5th" }, { "docid": "21886179", "title": "", "text": "proceeding if satisfied that the action is “frivolous or malicious.” 28 U.S.C. § 1915(d). Section 1915(d), however, provides no basis for “cursory treatment of meritorious complaints.” McTeague v. Sos-nowski, 617 F.2d 1016, 1019 (3d Cir. 1980). Discretion to dismiss “may not be exercised arbitrarily and is limited ... in every case by the language of the statute itself which restricts its application to complaints found to be ‘frivolous or malicious.’ ” Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir. 1979). The district court did not state on what basis it found Crisafi’s complaint frivolous or malicious and did not supply the statement of reasons required by Rule 24(a), Fed.R.App.P., in denying leave to proceed on appeal in forma pauperis. We therefore set out below illustrative situations in which an in forma pauperis pleading properly may be dismissed as “frivolous or malicious,” and state why immediate dismissal of Crisafi’s complaint was unwarranted. “In determining whether a particular ... complaint is frivolous or malicious under Section 1915(d), the threshold issue for the trial court is an assessment of the substance of the claim presented, i. e., is there a factual and legal basis ... for the asserted wrong, however inartfully pleaded.” Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976). See Collins v. Hladky, 603 F.2d 824, 825 (10th Cir. 1979). A complaint must indicate facts in support of its conclusions. In Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), for example, the Supreme Court held that “[i]n order to state a cognizable claim [of medical mistreatment under the Eighth Amendment], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” A court may dismiss as frivolous complaints reciting bare legal conclusions with no sug- gestión of supporting facts, or postulating events and circumstances of a wholly fanciful kind. Similarly, “[a] complaint conflicting with facts of which the district court may take judicial notice might also properly be dismissed under Section 1915(d).” Taylor v. Gibson, 529 F.2d 709, 717 (5th Cir. 1976). A pro se complaint," }, { "docid": "3578855", "title": "", "text": "court granted the motion to appeal in forma pauperis. If a district court finds that a case wherein the prisoner is proceeding in forma pauperis is either frivolous or malicious, then the court may dismiss the action prior to service of process. 28 U.S.C. § 1915(d). An action is frivolous under this section if it is without arguable merit. Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.1983). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the prisoner can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Pace, 709 F.2d at 1429. Under Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), a pro se prisoner complaint is governed by “less stringent standards than formal pleadings drafted by lawyers.” Prisoners have a constitutional right to be protected from violence while in custody. Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.), cert. dismissed sub nom. Ledbetter v. Jones, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975). In Gullatte v. Potts, 654 F.2d 1007, 1009-10 (5th Cir.1981), the inmate was known to be a “snitch” and was murdered after he was transferred to the general prison population of a maximum security unit. His wife brought suit and the former Fifth Circuit remanded the action to the district court for determination of whether the warden knew or should have known of the danger “snitches” are in when placed in a general prison population. Id. at 1012-15. Harmon’s claims, construed liberally as they must be, allege that prison officials have labeled him a snitch and are exposing him to inmate retaliation, perhaps because of his conduct in bringing prior lawsuits against the center. The claim, on its face, is sufficient to carry this cause of action through the service of process" }, { "docid": "22054341", "title": "", "text": "frivolous complaint. Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts 59 (1980). Most of the circuits that have considered the question follow the procedures recommended by the Federal Judicial Center and permit dismissal of frivolous IFP actions before issuance of process. See Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.1982) (per curiam); Collins v. Cundy, 603 F.2d at 827-28 (10th Cir.1979) (per curiam); Boyce v. Alizaduh, 595 F.2d 948, 950 (4th Cir.1979); Watson v. Ault, 525 F.2d 886, 893 (5th Cir.1976). But see Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir. 1983); Lewis v. New York, 547 F.2d 4, 5 (2d Cir.1976) (error to dismiss under section 1915(d) before service of process, notice, and an opportunity to respond). We find persuasive the reasoning of the cases holding that courts may dismiss frivolous actions filed in forma pauperis before service of process and adopt the procedure recommended by the Federal Judicial Center and applied here by the district court. B. Definition of Frivolous The standard in this circuit for dismissal of in forma pauperis actions as frivolous under section 1915(d) has been as unsettled as our position on the proper procedure to be followed in such dismissals. See Gifford v. Tiernan, 670 F.2d 882, 885 n. 7 (9th Cir.), cert. denied, 459 U.S. 804, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982); Franklin I, 662 F.2d 1337, at 1340 n. 1. Our cases have suggested that an IFP action may be dismissed as frivolous: (1) when, despite a formally alleged cause of action, the court finds the action is frivolous, Stiltner v. Rhay, 322 F.2d 314, 316 (9th Cir. 1963), cert, denied, 376 U.S. 920, 84 S.Ct. 678, 11 L.Ed.2d 615 (1964); (2) when the complaint fails to state a claim according to Fed.R. Civ.P. 12(b)(6), Boag v. Boies, 455 F.2d 467 (9th Cir.), cert, denied, 408 U S. 926, 92 5. Ct. 2509, 33 L.Ed.2d 338 (1972); and (3) only when the fees have been paid, Reece v. Washington, 310 F.2d 139, 140 (9th Cir. 1962). We attempt here to resolve the" }, { "docid": "1278116", "title": "", "text": "WILKINSON, Circuit Judge: In this case we must determine if the district court abused its discretion in dismissing without prejudice plaintiff’s pro se complaint as frivolous within the meaning of 28 U.S.C. § 1915(d). We find that such dismissal was proper and affirm. I. Plaintiff Judson Warren White is an inmate at the Huttonsville Correctional Center. On March 25, 1988, plaintiff tried to mail legal correspondence to his attorney. Under prison directives, plaintiff was classified as a non-indigent inmate since he had had $5.00 or more in his prison account on the fifteenth of the month. As a non-indigent inmate, plaintiff was not entitled to free postage during the course of the month. Since plaintiff had no funds remaining in his account on March 25, he was unable to pay the postage on his letters and thus was not permitted to mail his correspondence. On April 21, 1988, plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Southern District of West Virginia against defendants C.M. Bud White, Warden, Huttons-ville Correctional Center, and A.V. Dodrill, Commissioner of Corrections. He alleged, inter alia, that he was deprived of meaningful access to the courts as a result of defendants’ policy requiring inmates to pay cash for postage. Plaintiff sought injunc-tive and declaratory relief. The district court granted plaintiff's request to proceed in forma pauperis but dismissed his complaint without prejudice, sua sponte, as frivolous within the meaning of 28 U.S.C. § 1915(d). Plaintiff appeals. II. Pursuant to 28 U.S.C. § 1915(d), a trial court may dismiss an in forma pauperis action “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” See Boyce v. Alizaduh, 595 F.2d 948, 950 (4th Cir.1979). The district court need not look beyond the complaint’s allegations in making such a determination. It must, however, hold the pro se complaint to less stringent standards than pleadings drafted by attorneys and must read the complaint liberally. Trial courts, however, are granted broad discretion in determining whether a suit is frivolous or malicious. See, e.g.," }, { "docid": "18857174", "title": "", "text": "to plaintiff’s history of repetitive litigation, it is appropriate to tax costs against plaintiff in this case. The Fourth Circuit has concisely enunciated the competing policy considerations reflected in § 1915(d). On the one hand, the in forma pauperis provision provides access to the courts for indigents with meritorious claims. This is particularly vital in the prison context. On the other hand, “Federal courts must be diligent in acting to prevent state prisoners from calling upon the financial support of the federal government to prosecute frivolous civil suits intended to harass state prison officials.” Daye v. Bounds, 509 F.2d 66, 68-69 (4 Cir.), cert. denied, 421 U.S. 1002, 95 S.Ct. 2404, 44 L.Ed.2d 671 (1975); accord Evans v. Croom, 650 F.2d 521 (4 Cir. 1981); Carter v. Telectron, Inc., 452 F.Supp. 944, 950 (S.D.Tex.1977). The Fourth Circuit wrote: “We cannot permit . .. any . . . state prisoner to engage in a ceaseless barrage of frivolous civil suits at public expense based upon allegations that have been repeatedly found meritless .... Under these circumstances dismissal pursuant to 28 U.S.C. § 1915(d) is warranted.” Id. at 69. Thus, “especially broad discretion has been vested in federal district courts to deny state prisoners the privilege of proceeding in forma pauperis in civil actions against officials of the institution in which they are incarcerated.” Id. at 68; accord, Boyce v. Alizaduh, 595 F.2d at 951; Milton v. Nelson, 527 F.2d 1158, 1160 (9 Cir. 1976). There are at least four policy considerations which support reasoned, judicious dismissals pursuant to § 1915(d). Boyce, 595 F.2d at 951 n.6. First, frivolous suits unduly burden the courts, Carter v. Telectron, Inc., 452 F.Supp. 944, 949 (S.D.Tex.1977), sometimes obscuring meritorious claims, e. g., Raitport v. Chemical Bank, 74 F.R.D. 128, 130 (S.D.N.Y.1977). Second, they cause a significant expenditure of public monies. See Carter v. Telectron, Inc., 452 F.Supp. 939, 944 (S.D. Tex.1976). Third, because there is no filing fee, some prisoners file complaints in the hope of a “short sabbatical to the nearest federal courthouse.” Boyce v. Alizaduh, 595 F.2d at 951 n.6 and Collins v." }, { "docid": "23486099", "title": "", "text": "be read conjunctively. We must therefore conclude that when section 1915(d) authorizes the district court to dismiss a frivolous action, it is referring to an action properly commenced by the filing of a complaint. We recognize that courts may prevent a pro se litigant from filing an in forma pauperis complaint where such a litigant has a long track record of filing frivolous suits. See Urban v. Nations, 768 F.2d 1497, 1500 (D.C.Cir.1985) (per curiam) (imposing injunction on litigious pro se claimant requiring that he seek leave of court prior to filing a complaint in a United States federal court). However, there is no allegation that Gibson has a history of filing frivolous pro se claims in federal court. Section 1915 admittedly does not outline a precise procedure for dismissing an in forma pauperis action. Although early Sixth Circuit authority held that courts could dismiss actions as meritless based solely on a party’s section 1915(a) affidavit submitted in support of his motion to proceed in forma pauperis, see Loum v. Underwood, 262 F.2d 866, 867 (6th Cir.1959), more recent cases suggest that this procedure is inappropriate. In Brooks v. Dutton, 751 F.2d 197, 198 (6th Cir.1985) (per curiam), this court stated that it was error to dismiss an action as frivolous under section 1915(d) without first allowing a complaint to be filed under section 1915(a) upon a showing of poverty. Dutton appears consistent with several courts’ treatment of in forma pauperis actions, whereby the filing of a complaint is conditioned solely upon a person’s demonstration of poverty in his affidavit and the question of frivolousness is taken up thereafter. See Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1982) (“The preferred practice is for the Magistrate first to consider the petitioner's economic status and decide whether to grant leave to proceed in forma pauperis. If leave is granted, the Court magistrate should then determine whether dismissal is appropriate under 28 U.S.C. 1915(d).”) (citations omitted); Boyce v. Alizaduh, 595 F.2d 948, 950 (4th Cir.1979) (“ ‘Some courts have blurred the distinction between 1915(a) and 1915(d) by approving the practice of denying" }, { "docid": "22054344", "title": "", "text": "Field, 394 F.2d 329, 331 (9th Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1968) (rejecting definition of frivolity as slight chance of success on the merits). Most of the circuits that have addressed the issue have applied a modified form of the frivolity test from Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967) (appeal is frivolous where it lacks “arguable merit”), to section 1915(d) dismissals. In Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976), the court held that an IFP action must have arguable substance in law and fact. It described the trial court’s determination of the frivolity of pro se prisoners’ civil rights actions under section 1915(d) as “an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.” Id. Accord Crisafi v. Holland, 655 F.2d 1305, 1307 (D.C.Cir.1981) (per curiam); Boyce v. Alizaduh, 595 F.2d 948, 951-52 (4th Cir. 1979). Cf. Wiggins v. New Mexico State Supreme Court Clerk, 664 F.2d 812, 815 (10th Cir.1981), cert. denied, 459 U.S. 840, 103 S.Ct. 90, 74 L.Ed.2d 83 (1982) (defining frivolity as “whether a plaintiff can make a rational argument on the law and facts in support of his claims” without mentioning Anders). We adopt the Watson standard of frivolity. The legal component of the 1915(d) frivolity standard is thus similar to the test for dismissal of pro se complaints for failure to state a claim. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (pro se complaint may be dismissed for failure to state a claim only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”). We therefore reject the district court’s suggestion that it may “... assess ... the credibility of [the plaintiff’s] allegations,” Franklin II, 563 F.Supp. at 1324, at this stage" }, { "docid": "1278117", "title": "", "text": "White, Warden, Huttons-ville Correctional Center, and A.V. Dodrill, Commissioner of Corrections. He alleged, inter alia, that he was deprived of meaningful access to the courts as a result of defendants’ policy requiring inmates to pay cash for postage. Plaintiff sought injunc-tive and declaratory relief. The district court granted plaintiff's request to proceed in forma pauperis but dismissed his complaint without prejudice, sua sponte, as frivolous within the meaning of 28 U.S.C. § 1915(d). Plaintiff appeals. II. Pursuant to 28 U.S.C. § 1915(d), a trial court may dismiss an in forma pauperis action “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” See Boyce v. Alizaduh, 595 F.2d 948, 950 (4th Cir.1979). The district court need not look beyond the complaint’s allegations in making such a determination. It must, however, hold the pro se complaint to less stringent standards than pleadings drafted by attorneys and must read the complaint liberally. Trial courts, however, are granted broad discretion in determining whether a suit is frivolous or malicious. See, e.g., Flint v. Haynes, 651 F.2d 970, 974 (4th Cir.1981); Boyce, 595 F.2d at 951; Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir.1983); Holloway v. Gunnell, 685 F.2d 150, 155 (5th Cir.1982); Milton v. Nelson, 527 F.2d 1158, 1160 (9th Cir.1976). Our inquiry is thus limited to whether dismissal was an abuse of discretion. See Camp v. Oliver, 798 F.2d 434, 437 (11th Cir.1986). The Supreme Court recently addressed the § 1915(d) standard for dismissal of frivolous claims in Neitzke v. Williams, — U.S.-, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The question before the Court was whether a complaint filed in forma pauper-is which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is automatically frivolous under § 1915(d). While noting that there is “considerable common ground” between the standards, id., 109 S.Ct. at 1833, the Court ruled that failure to comply with 12(b)(6) does not necessarily dictate dismissal under § 1915(d). In reaching its decision, the Neitzke Court recognized that the purpose of § 1915(d) is “to discourage the filing" }, { "docid": "12662647", "title": "", "text": "in forma pauperis — particularly where the action is brought by a prisoner seeking damages. And it is this court’s conclusion that Congress has granted that extra authority by enacting 28 U.S.C. § 1915(d). Jones v. Bales, 58 F.R.D. at 463-64. Prisoners proceeding IFP are not bound by the usual financial restraint on unwarranted litigation, and their expenditure of time in preparation for a lawsuit is often a relief from the tedium of prison life. FJC Report, supra at 2. We keep firmly in mind the fact that the benefit of § 1915 is a privilege, not a right, Williams v. Field, 394 F.2d at 332, and that the court’s “extra measure of authority” in dealing with § 1915 actions is necessary because frivolous suits unduly burden the courts, sometimes obscuring meritorious claims, occasion significant expenditures of public monies, and are a means by which plaintiffs can use the federal government to harass individual defendants. Holsey v. Bass, 519 F.Supp. at 406. In light of these special considerations we must analyze what is meant by “frivolous” as that term is used in the statute. Some courts choose to equate the notion with the standard for dismissal under Rule 12(b)(6). See, e.g., Montana v. Commissioners Court, 659 F.2d 19, 21 (5th Cir.1981) (per curiam), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Boyce v. Alizaduh, 595 F.2d 948, 952 (4th Cir.1979). Others adopt the view that an action is frivolous if the plaintiff’s realistic chances of ultimate success are slight. Sims v. Zolango, 481 F.Supp. 388, 391 n. 1 (S.D.N.Y.1979); Boston v. Stanton, 450 F.Supp. at 1053; Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa.1975); Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102, 106 (E.D.La.1975); Jones v. Bales, 58 F.R.D. at 464; see also Urbano v. Sondern, 370 F.2d 13, 14 (2d Cir.1966), cert. denied, 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1967). One authority finds refuge in language used in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), which employs a definition akin to that used" }, { "docid": "1278118", "title": "", "text": "Flint v. Haynes, 651 F.2d 970, 974 (4th Cir.1981); Boyce, 595 F.2d at 951; Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir.1983); Holloway v. Gunnell, 685 F.2d 150, 155 (5th Cir.1982); Milton v. Nelson, 527 F.2d 1158, 1160 (9th Cir.1976). Our inquiry is thus limited to whether dismissal was an abuse of discretion. See Camp v. Oliver, 798 F.2d 434, 437 (11th Cir.1986). The Supreme Court recently addressed the § 1915(d) standard for dismissal of frivolous claims in Neitzke v. Williams, — U.S.-, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The question before the Court was whether a complaint filed in forma pauper-is which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is automatically frivolous under § 1915(d). While noting that there is “considerable common ground” between the standards, id., 109 S.Ct. at 1833, the Court ruled that failure to comply with 12(b)(6) does not necessarily dictate dismissal under § 1915(d). In reaching its decision, the Neitzke Court recognized that the purpose of § 1915(d) is “to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.” Id. 109 S.Ct. at 1832-33. In order to further this goal while still protecting the rights of indigent litigants under the in forma pauperis statute, the Court announced that a complaint should be dismissed as frivolous “where it lacks an arguable basis either in law or in fact.” Id. at 1831. Applying this standard to the facts of its case, the Court affirmed the circuit court’s refusal to permit the dismissal of a prisoner’s § 1983 claim alleging that he had failed to receive proper medical treatment in violation of his Eighth Amendment rights. The prisoner’s complaint alleged that he had notified prison officials that he suffered from a brain tumor, and that they had refused to treat him. It failed, however, to state a claim of “deliberate indifference to [his] serious" }, { "docid": "18857153", "title": "", "text": "WATKINS, Senior District Judge. The Court holds that this 42 U.S.C. § 1983 claim, filed by an indigent state prisoner, challenging actions which allegedly occurred during a state criminal trial, direct appeal, and in collateral attacks upon the conviction, and in which the plaintiff does not seek release or a reduction of his sentence, but only monetary damages, states a § 1983 claim; however, the claim will be dismissed sua sponte as frivolous because it is barred by the statute of limitations and by collateral estoppel. 28 U.S.C. § 1915(d). I Plaintiff, Aaron Holsey, has filed this complaint pursuant to 42 U.S.C. § 1983 and he seeks leave to proceed in forma pauperis, 28 U.S.C. § 1915. Leave to proceed will be granted, 28 U.S.C. § 1915(a), the complaint will be docketed, and it will be dismissed as frivolous, 28 U.S.C. § 1915(d). Boyce v. Alizaduh, 595 F.2d 948, 950 (4 Cir. 1979). The Clerk of the Court will be directed to tax costs against Holsey as a nonprevailing party. Duhart v. Carlson, 469 F.2d 471, 478 (10 Cir. 1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973); Perkins v. Cingliano, 296 F.2d 567 (4 Cir. 1961); Marks v. Calendine, 80 F.R.D. 24 (N.D.W.Va.1978); see Hughes v. Rowe, 449 U.S. 5, 11, 101 S.Ct. 173, 177, 66 L.Ed.2d 163 (1980). This is at least Holsey’s second claim based on the same facts. Holsey, convicted of second degree murder, is serving a twenty year sentence in the Maryland penal system. He has named fifteen defendants in the instant suit. They include state judges, a state prosecutor, state public defenders, a state parole agent, state court reporters, a state court clerk, and a private attorney. The complaint also alleges possible constitutional torts by persons who are not named as defendants; however, given the disposition of this complaint, it would be futile to direct that they be added as parties in this action. Furthermore, this Court need not address the issues of absolute and qualified immunity, which would otherwise be raised. See, e. g., Imbler v. Patchman, 424 U.S." }, { "docid": "144257", "title": "", "text": "U.S.C. § 1915(d), finding that the action was frivolous and that the defects in the complaint. could not be cured by amendment. The court did not rule on whether Montana qualified for in forma pauperis (“IFP”) status. Montana filed a timely notice of appeal and moved for permission to proceed IFP on appeal. The district court denied such status, certifying that an' appeal would be frivolous, “wholly without merit,” and would not be taken in good faith. Montana seeks review of this ruling, pointing out in his appellate pleadings that during pendency of the suit his claim concerning telephone privileges was remedied by the defendants. He does not indicate whether he is still a pretrial detainee. His appellate pleadings contain an affidavit of poverty which reveals that he is indigent. Pursuant to 28 U.S.C. § 1915(d), a district court has the authority to dismiss a case when an action is frivolous or malicious, and the authority to dismiss under section 1915(d) is broader than dismissal under Federal Rule of Civil Procedure 12. Green v. City of Montezuma, Georgia, 650 F.2d 648 at 650 (5th Cir. 1981), citing Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir. 1973), and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979). The standard for determining the legal sufficiency of a complaint for purposes of section 1915(d), however, is the same one enunciated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), i. e., that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (Quoted in Green v. City of Montezuma, Georgia, at 651). Since Montana’s complaint is pro se, it should not be held to as rigorous a standard as the formal pleadings prepared by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). I. Conjugal Visits. The complaint alleges that plaintiff Montana was deprived of private physical" }, { "docid": "21886178", "title": "", "text": "not taken in good faith.” We conclude that Crisafi has stated a claim for relief not susceptible to threshold dismissal. We therefore grant him leave to appeal in forma pauperis, reverse the dismissal of his complaint, and remand the case to the district court for further proceedings consistent with this opinion. 28 U.S.C. § 1915(a) permits federal courts to authorize the maintenance of an action without prepayment of fees and costs (“in forma pauperis”) by a person “who makes [an] affidavit that he is unable to pay such costs or give security therefor.” This provision “is intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, ‘in any court of the United States’ solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 342, 69 S.Ct. 85, 90, 93 L.Ed.2d 43 (1948). At the same time, Congress stipulated that a court may dismiss an in forma pau-peris proceeding if satisfied that the action is “frivolous or malicious.” 28 U.S.C. § 1915(d). Section 1915(d), however, provides no basis for “cursory treatment of meritorious complaints.” McTeague v. Sos-nowski, 617 F.2d 1016, 1019 (3d Cir. 1980). Discretion to dismiss “may not be exercised arbitrarily and is limited ... in every case by the language of the statute itself which restricts its application to complaints found to be ‘frivolous or malicious.’ ” Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir. 1979). The district court did not state on what basis it found Crisafi’s complaint frivolous or malicious and did not supply the statement of reasons required by Rule 24(a), Fed.R.App.P., in denying leave to proceed on appeal in forma pauperis. We therefore set out below illustrative situations in which an in forma pauperis pleading properly may be dismissed as “frivolous or malicious,” and state why immediate dismissal of Crisafi’s complaint was unwarranted. “In determining whether a particular ... complaint is frivolous or malicious under Section 1915(d), the threshold issue for the trial court is an" }, { "docid": "23486100", "title": "", "text": "(6th Cir.1959), more recent cases suggest that this procedure is inappropriate. In Brooks v. Dutton, 751 F.2d 197, 198 (6th Cir.1985) (per curiam), this court stated that it was error to dismiss an action as frivolous under section 1915(d) without first allowing a complaint to be filed under section 1915(a) upon a showing of poverty. Dutton appears consistent with several courts’ treatment of in forma pauperis actions, whereby the filing of a complaint is conditioned solely upon a person’s demonstration of poverty in his affidavit and the question of frivolousness is taken up thereafter. See Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1982) (“The preferred practice is for the Magistrate first to consider the petitioner's economic status and decide whether to grant leave to proceed in forma pauperis. If leave is granted, the Court magistrate should then determine whether dismissal is appropriate under 28 U.S.C. 1915(d).”) (citations omitted); Boyce v. Alizaduh, 595 F.2d 948, 950 (4th Cir.1979) (“ ‘Some courts have blurred the distinction between 1915(a) and 1915(d) by approving the practice of denying leave to proceed in forma pauperis on the ground that the complaint is frivolous or malicious. The practice observed by most courts is to consider only the petitioner’s economic status in making the decision whether to grant leave to proceed informa pauperis.’ ”) (quoting “Recommended Procedures For Handling Prisoner Civil Rights Cases In the Federal Courts” (Federal Judicial Center, Tentative Report No. 2, 1977)); Cay v. Estelle, 789 F.2d 318, 322 (5th Cir.1986) (“A grant of leave to proceed in forma pauperis is made by considering only a petitioner’s economic status.”); Franklin v. Murphy, 745 F.2d 1221, 1226-27 n. 5 (9th Cir.1984); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) (per curiam) (“Under the provisions of 28 U.S.C. 1915(a), when a prisoner files a motion for leave to proceed in for-ma pauperis and the affidavit of property is facially sufficient, the complaint should be filed.”); Smith v. Bacon, 699 F.2d 434, 436 (8th Cir.1983) (where section 1915(a) satisfied, better practice is to allow the action to be docketed). The procedure recognized by Dutton and" }, { "docid": "23369355", "title": "", "text": "foregoing reasons, the district court’s order dismissing sua sponte Williams’ pro se complaint and denying him leave to proceed in forma pauperis is affirmed in part and reversed in part. This case is remanded to the district court for further proceedings consistent with this opinion. . The statute provides, in relevant part, that \"[t]he court ... may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d). . The district court's denial of Williams’ motion to proceed in forma pauperis was consistent with the procedure outlined in Wartman v. Branch 7, Civil Division, County Court, 510 F.2d 130, 132-34 (7th Cir.1975). In Wartman, this court stated that a district court may deny a motion to proceed in forma pauperis if it finds that the complaint is frivolous. Other circuits, however, grant or deny in forma pauperis status based on the plaintiffs financial resources alone and then independently determine whether to dismiss the complaint as frivolous. See, e.g., Franklin v. Murphy, 745 F.2d 1221, 1226-27 n. 5 (9th Cir.1984); Boyce v. Alizaduh, 595 F.2d 948, 950-51 (4th Cir.1979). . 28 U.S.C. § 1915(a) provides: Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs of security therefore, by a person who makes affidavit that he is unable to pay such costs or give security therefore. Such affidavit shall state the nature of the action, defense or appeal and affi-ant’s belief that he is entitled to redress. .Rule 12(b)(6) provides in pertinent part: Every defense, in law or fact, ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (6) failure to state a claim upon which relief can be granted Fed.R.Civ.P. 12(b)(6). . There are, however, situations where a complaint both fails to state a claim upon which relief can be granted pursuant to 12(b)(6) and is" }, { "docid": "22054340", "title": "", "text": "actions where the fees have been paid before service of process because such procedure eliminates the traditional adversarial relationship, causes inefficiencies in the judicial process, and gives the appearance that the court is a proponent rather than an independent entity. Franklin I, 662 F.2d at 1341-42. But where the plaintiff is proceeding in forma pauperis, the impact of additional factors must be considered. Most importantly, IFP plaintiffs are immune from the economic deterrents to filing frivolous lawsuits, such as assignment of costs of suit and tort liability for abuse of process. In forma pauperis actions also involve more of the court’s own resources. See Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir.1983) (Cardamone, J., no judges joining opinion). Section 1915(d) therefore gives courts “an extra measure of authority in dealing with such actions.” Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979). The Prisoner Civil Rights Committee of the Federal Judicial Center recommends that the court make the frivolity determination before issuing process to protect defendants from the expense and inconvenience of answering a frivolous complaint. Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts 59 (1980). Most of the circuits that have considered the question follow the procedures recommended by the Federal Judicial Center and permit dismissal of frivolous IFP actions before issuance of process. See Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.1982) (per curiam); Collins v. Cundy, 603 F.2d at 827-28 (10th Cir.1979) (per curiam); Boyce v. Alizaduh, 595 F.2d 948, 950 (4th Cir.1979); Watson v. Ault, 525 F.2d 886, 893 (5th Cir.1976). But see Bayron v. Trudeau, 702 F.2d 43, 45 (2d Cir. 1983); Lewis v. New York, 547 F.2d 4, 5 (2d Cir.1976) (error to dismiss under section 1915(d) before service of process, notice, and an opportunity to respond). We find persuasive the reasoning of the cases holding that courts may dismiss frivolous actions filed in forma pauperis before service of process and adopt the procedure recommended by the Federal Judicial Center and applied here by the district court. B. Definition of Frivolous The standard in this" }, { "docid": "18857230", "title": "", "text": "the other cited authorities permit the action it takes today. The plaintiffs pleading will be liberally construed pursuant to Haines and Gordon v. Leeke. All facts will be viewed in the light most favorable to plaintiff. He will receive the benefit of a liberal definition of frivolity, as mandated in Boyce v. Aiizaduh. To ignore obvious affirmative defenses would be inconsistent with the broad discretion conferred upon district courts by § 1915(d), and it would effectively render the frivolous or malicious provisions of the statute almost a nullity. The Fourth Circuit has indicated that there should be no distinction between an in forma pauperis suit and a suit filed after payment of fees, citing Williams v. Field, 394 F.2d 329 (9 Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1968); Boyce, 595 F.2d at 951 n.7. In Williams, the Ninth Circuit affirmed a dismissal sua sponte based on § 1915(d) after the district court had examined its records of the civil rights plaintiffs state post conviction proceedings. This Court, like the Williams court, will dismiss Holsey’s complaint sua sponte because it finds the complaint to be frivolous in light of its records. Two unpublished per curiam opinions of the Fourth Circuit support this Court’s conclusion that it can consider affirmative defenses sua sponte in the case at bar. In Hairston v. Morris, et al., No. 81-6209, (4 Cir. May 14, 1981) (per curiam), a prisoner appealed from the district court’s sua sponte dismissal of his § 1983 claim. The Fourth Circuit affirmed, holding, inter alia; “Hairston’s first allegation has been litigated in a previous case; consequently, principles of res judicata bar re-litigation of the issue. Wiggins v. Murphy, 576 F.2d 572 (4th Cir. 1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 57 (1979); Crowe v. Leeke, 550 F.2d 184 (4th Cir. 1977).” Hairston demonstrates sub silentio that Boyce does not bar the action taken by this Court today. In an unpublished 1977 per curiam opinion, the Fourth Circuit wrote: Without requiring a response from the defendants, the district court dismissed the petition as" }, { "docid": "18857177", "title": "", "text": "held to the technical niceties of an attorney. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); Gordon v. Leeke, 574 F.2d 1147 (4 Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978). There is, however, a dispute between the circuits as to whether this standard of liberal construction also applies to a determination that a complaint is frivolous or malicious, 28 U.S.C. § 1915(d). The Tenth Circuit, recognizing the various motives behind in forma pauperis claims, wrote: Whereas in understanding a pleading leniency is necessary to counteract the plaintiff’s lack of legal expertise, the same degree of predisposition in favor of the pro se plaintiff is not called for when a determination is made under § 1915(d). Serna v. O’Donnell, 70 F.R.D. 618, 621 (W.D.Mo.1976). Simply because one is indigent, there is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit. See . . . Daye v. Bounds, supra [4 Cir.]. Collins v. Cundy, 603 F.2d at 828. The Fourth Circuit, however, after noting the same possible motives, has mandated liberal “predisposition” under § 1915(d), Boyce v. Alizaduh, 595 F.2d at 952, and this Court will apply the Boyce rule. In Boyce, the Fourth Circuit enunciated the following test for frivolity: To satisfy the test for frivolousness under § 1915(d), it is accordingly essential for the district court to find “beyond doubt” and under any “arguable” construction, “both in law and in fact” of the substance of the plaintiff’s claim that he would not be entitled to relief. Boyce v. Alizaduh, 595 F.2d at 952 (citations omitted). V There is a split of authority as to whether a court can consider affirmative defenses in ruling pursuant to § 1915(d) that a complaint is frivolous or malicious. Compare Daves v. Scranton, 66 F.R.D. 5, 7 (E.D.Pa.1975) (court can consider affirmative defense sua sponte) with Sinwell v. Schapp, 536 F.2d 15, 19 (3 Cir. 1976) (court cannot dismiss sua sponte on the grounds of improper" } ]

[ { "docid": "13474128", "title": "", "text": "the extent that the district court’s analysis may be in error in this regard, we hold that that error is harmless. In reviewing the judgment, we apply the facts as found by the court, whether those facts were found in the “validity” or the “infringement” sections of the court’s opinion. . Wahl v. Rexnord, Inc., 624 F.2d 1169, 206 USPQ 865 (3d Cir.1980) (finding issues of material fact, reversing Judge Meanor’s grant of summary judgment of invalidity of the ’508 patent, and remanding the case for further proceedings). . Fed.R.Civ.P. 52(a). . We note a critical error of analysis in Car-man’s argument. Although related, validity and infringement are separate issues. The validity of a patent is determined under the applicable criteria of patentability. One of the limitations on the use of the doctrine of equivalents is that the claims cannot be accorded a construction that would encompass prior art. Thomas & Betts Corp. v. Litton Syss., Inc., 720 F.2d 1572 (Fed.Cir. Nov. 14, 1983), rev'g Thomas & Betts Corp. v. Winchester Elecs. Div. of Litton Syss., Inc., 519 F.Supp. 1191, 213 USPQ 943 (D.Del.1981). Claims should be so construed, if possible, as to sustain their validity. Turrill v. Michigan S. & N.I.R.R. Co., 1 Wall. 491, 510, 68 U.S. 491, 510, 17 L.Ed. 668 (1864); Klein v. Russell, 19 Wall. 433, 466, 86 U.S. 433, 466, 22 L.Ed. 116 (1874). If such a construction would result in invalidity of the claims, the appropriate legal conclusion is one of non-infringement, not invalidity. . Wahl v. Rexnord, Inc., 481 F.Supp. 573, 203 USPQ 838 (D.N.J.1979), rev’d, 624 F.2d 1169, 206 USPQ 865 (3d Cir.1980). . Since we reject Carman’s anticipation argument based on Dumbaugh, which is the most pertinent prior art, we need not address Car-man’s remaining anticipation arguments. .The ’583 patent was declared invalid under 35 U.S.C. § 103 by the Seventh Circuit in Wahl v. Carrier Mfg. Co., 452 F.2d 96, 171 USPQ 195 (7th Cir.1971), cert. denied, 405 U.S. 990, 92 S.Ct. 1255, 31 L.Ed.2d 457, 173 USPQ 65 (1972). . Graham v. John Deere Co., 383 U.S. 1," } ]

[ { "docid": "23506664", "title": "", "text": "Technological “embellishment” made possible by the patent’s disclosure “does not allow the accused [device] to escape the 'web of infringement’ ”. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1365, 219 USPQ 473, 483 (Fed.Cir.1983) (quoting Bendix Corp. v. United States, 600 F.2d 1364, 1382, 220 Ct.Cl. 507, 204 USPQ 617, 631 (1979)). Devices that have been modified to such an extent that the modification may be separately patented may nonetheless infringe the claims of the basic patent. See Atlas Powder, 750 F.2d at 1580, 224 USPQ at 417 (infringement will be found where the material features of the patent have been appropriated, even when these features have been patentably improved). Similarly, the modification of an accused device does not negate infringement when that device has adopted the features of the claims or their equivalents. See Radio Steel & Manufacturing Co. v. MTD Products, Inc., 731 F.2d 840, 847-48, 221 USPQ 657, 663-64 (Fed.Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 62 (1984) (modification of feature to perform equivalent function held as infringement, as is appropriation of patented feature to perform an additional function); Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1482, 221 USPQ 649, 653 (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240 (1984) (quoting McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 402, 145 USPQ 6, 22 (10th Cir.1965), cert. denied, 383 U.S. 933, 86 S.Ct. 1061,15 L.Ed.2d 851 (1966) (“infringement cannot be avoided by the mere fact that the accused device is more or less efficient or performs additional functions”)). TI argues that the Commission required too narrow a construction of the ’921 patent claims, contrary to this body of precedent, so that the Commission in effect limited the claims to the means that were illustrated in the specification. As stated in D.M.I.: To interpret “means plus function” limitations as limited to a particular means set forth in the specification would be to nullify the provision of § 112 requiring that the limitation shall be construed to cover the structure described in the specification and equivalents" }, { "docid": "19261913", "title": "", "text": "1565, 1569-71, 219 USPQ 1137, 1140-41 (Fed.Cir.1983); McGill Inc. v. John Zink Co., 736 F.2d 666, 673, 221 USPQ 944, 949 (Fed.Cir.1984). Nevertheless, after examining the prosecution history as argued by Lemelson on appeal for the ’042 patent in conjunction with claim 1 and the specification, we are unpersuaded that the lower court erred in interpreting the ’042 patent. The court’s failure to consider the prosecution history of the ’042 patent was, therefore, harmless error not meriting reversal. Gardner v. TEC Systems, Inc., 725 F.2d at 1350, 220 USPQ at 786. Lemelson’s arguments that clear factual errors, regarding operation and structure of the accused CMMs, infected the Claims Court’s conclusion of non-infringement of the ’042 patent are similarly insubstantial. Notwithstanding what appears to be the Claims Court’s incorrect labeling of and reference to the probe shaft on the accused devices, we do not see that the court thereby committed clear error in applying claim 1 to the accused CMMs. None of the asserted errors infect the finding that the manipulation means of claim 1, directed to prepositioning of the workpiece, is not present in the accused structures. 3. Doctrine of Equivalents Lemelson also argues that the asserted clear factual errors made it impossible for the lower court to determine infringement based on the doctrine of equivalents. Equivalence is a question of fact for which the burden of proof rested on Lemelson. Hughes Aircraft Co. v. United States, 717 F.2d at 1361, 219 USPQ at 480; Thomas & Betts Corp. v. Litton Systems, Inc., 720 F.2d 1572, 1579, 220 USPQ 1, 6 (Fed.Cir.1983). The doctrine allows a court to find infringement when the accused device and 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 (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). It is also well settled that each element of a claim is material" }, { "docid": "23053323", "title": "", "text": "Atlas Powder Co. v. E.I. DuPont De Nemours, 750 F.2d 1569, 1573, 224 USPQ 409, 411 (Fed.Cir.1984). Accordingly, the presumptive validity of the ’167 patent remains unscathed and the judgment upholding claims 15-21 of the ’167 patent is affirmed. (2) Infringement Downwind alone appeals from the judgment of infringement, urging that its structure does not have a “joint having a plurality of axes of rotation.” Downwind employs a flexible rubber tube or rod connecting the mast and the board. Claim interpretation is a question of law, McGill, Inc. v. John Zink Co., 736 F.2d 666, 221 USPQ 944, 948 (Fed.Cir.), cert. denied, — U.S. ——, 105 S.Ct. 514, 83 L.Ed.2d 404 (1985), but we have been shown no basis for upsetting the district court’s interpretation of the claims as covering a structure that permits the mast to pivot with respect to and about a number of axes. Downwind’s contention that a flexible rubber tube is not “mechanical”, and does not rotate, and thus is not a “joint” within the meaning of the claims, is without merit. The word “mechanical” does not appear in the claims, the twisting of the flexible tube is about an axis of rotation, and the tube forms a joint between the mast and board. Whether Downwind’s accused device infringes the claims as interpreted is a fact question, Raytheon Co. v. Roper Corp., 724 F.2d 951, 961, 220 USPQ 592, 600 (Fed.Cir.1983), cert. denied, — U.S. -, 105 S.Ct. 127, 83 L.Ed.2d 69 (1984), and a finding on that question will not be upset unless clearly erroneous. Carmen Industries, Inc. v. Wahl, 724 F.2d 932, 941, 220 USPQ 481, 488 (Fed.Cir.1983). None of the accused infringers has attempted to rebut the testimony on which the district court relied in finding infringement. Downwind has not shown that the claims must be given its own unduly narrow interpretation or that the district court’s finding of infringement was clearly erroneous. Accordingly, the judgment of infringement is affirmed. (3) Patent Misuse AMF’s allegation of patent misuse is based on this paragraph included in license agreements between WSI and eleven licensees: 10." }, { "docid": "12345763", "title": "", "text": "filing the application and must particularly point out and distinctly claim what the inventor regards to be his invention. Id. The last requirement is important because it lets others know when they are trespassing or infringing on the inventor’s property rights in the invention. Only patent claims are infringed, not the patent as a whole. Claims are the most important part of the patent application in that they define the legal monopoly conferred on the patented specification. An issued patent is comprised of 1) a written specification which may include drawings where appropriate and 2) claims. Only the claims disclosed in a patent grant are protected by the patent. A patent holder may be able to prove claim infringement by proving literal infringement or equivalent infringement under the Doctrine of Equivalents. Claim Construction and Literal Infringement The first step in determining patent infringement is to construe the claims. Moeller v. Ionetics, Inc., 794 F.2d 653, 656 (Fed. Cir.1986) (citing Loctite Corp. v. Ultraseal, Ltd., 781 F.2d 861, 866, 228 U.S.P.Q. 90, 93 (Fed.Cir.1985)). Then, the properly construed claims are compared to the alleged infringing device. Claim interpretation is a question of law for the court unless some dispute exists as to the claim language, requiring the admission of extrinsic evidence to explain the ambiguity. Moeller, 794 F.2d at 656 (citing McGill, Inc. v. John Zink & Co., 736 F.2d 666, 671, 221 U.S.P.Q. 944, 948 (Fed.Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984)). If the claims are genuinely disputed, extrinsic evidence by way of expert testimony and other evidence is appropriate since “resort to certain extrinsic evidence (i.e. the specification, prosecution, and other claims) is always necessary to interpret disputed claims.” Moeller, 794 F.2d at 656. In the present case, Defendants filed the affidavit of Edward J. Brenner with, and in support of, their motion for summary judgment. Plaintiffs filed affidavits of Herbert Allen and John C. McNett in opposition to Defendants’ motion for summary judgment. The experts disagree as to the meaning of key terms in the claims, including “protuberance” and “screw thread,” among" }, { "docid": "37758", "title": "", "text": "may, however, rely on a reference in the patent itself that discloses the accused element as an equivalent to the patented element in determining equivalence. See, e.g., Linde Air Products Co. v. Graver Tank & Mfg. Co., 86 F.Supp. 191, 199 (N.D.Ind.1947), aff'd in pertinent part, 167 F.2d 531 (7th Cir.1948), aff'd in pertinent part, 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672 (1949). The law does not require proof of bad faith to establish infringement. Wilden Pump & Eng’g Co. v. Pressed & Welded Products Co., 655 F.2d 984, 989 (9th Cir.1981). Accordingly, even though the accused device may improve on a patented device through good faith design work, the accused device may nonetheless infringe the patented device. The fact that an accused device is an improvement over the claimed invention as a consequence of subsequent developments does not preclude a finding of infringement under the doctrine of equivalents. Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 1426-27 (Fed.Cir.1988). 2. Principles of Claim Construction Claims are construed in light of the patent’s specifications, the prosecution history, the prior art, and the testimony of expert witnesses. Smithkline Diagnostics, Inc. v. Helena Laboratories Corp., 859 F.2d 878, 882 (Fed.Cir.1988). Under the principle of claim differentiation, a broadly written claim cannot be limited by another, more narrowly written claim. Marsh-McBirney, Inc. v. Montedoro-Whitney Corp., 882 F.2d 498, 504 (Fed.Cir.1989). Moreover, a limitation appearing in the specifications, the preferred embodiments, or the commercial embodiments, cannot be read into the patent’s claims. Intervet America, Inc. v. Kee-Vet Laboratories, Inc., 887 F.2d 1050, 1053 (Fed.Cir.1989); Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, 865 (Fed.Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2069, 104 L.Ed.2d 634 (1989). The specifications can, however, be used to construe the literal meaning of words in the claims. McGill Inc. v. John Zink Co., 736 F.2d 666, 674 (Fed.Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984). 3. The Time at Which Equivalence is Determined Prior to the commencement of trial, in response to in limine motions filed by the parties, the Court" }, { "docid": "14692827", "title": "", "text": "found, however, that \"each of the ... compound bow[s] manufactured and sold by the Browning parties is mechanically the same as\" the Browning bows that were introduced in evidence. Finding 31. Browning does not contend that this finding was clearly erroneous, and we cannot say that it is. The alleged error to which Browning refers was harmless. The cases Browning cites, Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 221 U.S.P.Q. 1 (Fed.Cir.1984), and Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 221 U.S.P.Q. 649 (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240, 224 U.S.P.Q. 616 (1984), simply recite the truism that infringement must be established by comparison of the claims with devices sold before suit. The Bingham defendants complain that the district court held them liable for infringement based solely on (1) their stipulation that they sold compound bows and (2) their advertising infringing bows in their catalog. This is in essence the assertion that proof of infringement requires production of an actual infringing device the accused infringer sold. We know of no such rule of law, and decline to formulate one. B. Browning also asserts that the Allen claims \"are incomprehensible, inaccurate and/or indefinite, and cannot be applied to the accused bows.\" This is but another attack on the validity of the claims, which we have rejected. C. Browning's principal argument is that \"the evidence proves noninfringement.\" The district court found to the contrary, and Browning has not shown that this finding is clearly erroneous. Browning's argument is an attempt to have this court consider the evidence de novo, and that is not our role. Browning's reiteration of the evidence in its favor, which the district court rejected, does not establish clear error by the district court. V ANTITRUST VIOLATIONS Browning alleges that \"ALLEN violated the Sherman Act, particularly 15 U.S.C. § 2, by obtaining the patent through inequitable conduct.\" This contention necessarily falls in view of our affirmance of the district court's holding that Allen did not engage in inequitable conduct. Moreover, the allegation does not establish a violation of the Sherman" }, { "docid": "6646973", "title": "", "text": "litigation the Court, as a matter of law, must construe the meaning of the patent claims. Claims must be construed the same way for determining infringement and any alleged invalidity thereof. Smith Diagnostics, Inc. v. Helena Labs Corp., 859 F.2d 878, 882 (Fed.Cir. 1988). The initial determination must be to construe the lawful scope of the patent claims. Infringement determination is a two-step inquiry — determining the scope of the claims, and whether the claimed invention has been infringed. McGill, Inc. v. John Zink Co., 736 F.2d 666, 671, 221 USPQ 944, 948 (Fed.Cir.1984), cert. denied, 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984). In D.M.I., Inc. v. Deere & Co., 755 F.2d 1570, 1574, n. 2 (Fed.Cir.1985), the Federal Circuit said, “Claims are always interpretable in light of the specification and prosecution history of the application that lead to the patent.” 2. The Court notes that a patentee may obtain a patent on a workable conception without having actually made a physical model of his invention. The filing of a patent application disclosing the workable conception constitutes a constructive reduction to practice of the invention. Hazeltine Corp. v. United States, 820 F.2d 1190, 2 USPQ2d 1744 (Fed.Cir.1987). 3. Under 35 U.S.C. § 271(a), infringement of a U.S. patent occurs when a person or entity, without authority of the patentee, makes, uses, or sells the patented invention within the United States. Infringement is determined by reading the claims of the patent on the accused infringing device. If the language of a claim literally reads upon the accused device, then the unauthorized maker, user, or seller of such device will be found by the Court to have infringed the patent in suit. The patentee has the burden of proving infringement by a preponderance of the evidence. 4. Even if the claim language possibly-may not literally be read upon the accused device, the patentee may rely upon the “doctrine of equivalents” under which a de vice which “performs substantially the same function in substantially the same way to obtain the same result” may be held to infringe the patent claim." }, { "docid": "22117048", "title": "", "text": "the principle as follows: [The doctrine of equivalents] permits a patentee to realize the full benefit of his patent grant by enabling the patentee to read his patent claims on a device which is not within the literal meaning of his claims. It arms a patentee against a person who merely substitutes a functionally equivalent element in a device and thereby practices the invention without bringing his device within a literal reading of the patent claims. Accord In re Baird, 348 F.2d 974, 979, 52 C.C.P.A. 1747, 1753, 146 USPQ 579, 584 (1965). That infringement is not established where an element of a claim is missing (again in the sense that no equivalent is substituted) was expressly acknowledged by this court and controlled the judgment in Lemelson v. United States, 752 F.2d 1538, 224 USPQ 526 (Fed.Cir.1985). As held therein: “It is also well settled that each element of a claim is material and essential, and that in order for a court to find infringement, the plaintiff must show the presence of every element or its substantial equivalent in the accused device.” 752 F.2d at 1551, 224 USPQ at 533 (emphasis added). ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 1582-83, 221 USPQ 929, 936 (Fed.Cir.1984), similarly holds: We infer that the district court necessarily found that the Wells device, lacking the claimed function of overriding a locked key switch, does not function in substantially the same way as the claimed invention. That inference is supported by the record. Accordingly, we conclude that the district court’s finding, that the Wells device does not infringe the Sonnenberg patent under the doctrine of equivalents, is not clearly erroneous. In Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1484, 221 USPQ 649, 655, (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240 (1984), this court refused to “undermine the long-established legal principle that non-infringement is shown when an element or step in the claims is missing from the accused product or process.... ” Accord Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1577, 1 USPQ2d 1593, 1604" }, { "docid": "9960021", "title": "", "text": "is new or which performs a substantially different function, or if it is old, but was not known at the date of the plaintiffs invention as a proper substitute for the omitted ingredient, then he does not infringe. See also Perkin-Elmer Corp. v. Westinghouse Elec. Co., 822 F.2d at 1532-33, 3 U.S.P.Q.2d at 1325 (“each element of a claim is material and essential ... in order for a court to find infringement, the plaintiff must show the presence of every element or its substantial equivalent in the accused device”). As stated in the Court’s findings of fact, the heat of jacketing provides significantly less heat than the heater apparatus referred to in the patents in suit; moreover, an attempt to include the heat of jacketing (or the apparatus by which it is applied) within the “heater” language of Claim 1 of the ’340 patent would impermissibly extend the scope of the asserted claims to the prior art. Compare Carman Inds., Inc. v. Wahl, 724 F.2d 932, 937, n. 5, 942, 220 U.S.P.Q. 481, 487 (Fed.Cir.1983), (one limitation on doctrine of equivalents is that claim cannot be accorded a construction that could encompass prior art); Thomas & Betts Corp. v. Litton Systems, Inc., 720 F.2d 1572, 1579-80, 220 U.S.P.Q. 1, 6 (Fed.Cir.1983). 8. In construing the language of the claims of the patents in suit the Court is guided and bound by the appropriate precedents of the Court of Appeals for the Federal Circuit. In the first instance, the Court considers the literal language of the patent claims, McGill, Inc. v. John Zink Co., 736 F.2d 666, 671, 221 U.S.P.Q. 944, 948 (Fed.Cir.1984). If there is no dispute as to the meaning of the language of the claims, then the Court may interpret their scope as a matter of law. On the other hand, where the meaning of key terms used in the claims are in dispute, extrinsic evidence is resorted to, including the specification of the patent, the prosecution history, the prior art, expert testimony and the other claims in the patent. Tandon Corp., v. U.S. Inter. Trade Com’n, 831" }, { "docid": "23506665", "title": "", "text": "as infringement, as is appropriation of patented feature to perform an additional function); Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1482, 221 USPQ 649, 653 (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240 (1984) (quoting McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 402, 145 USPQ 6, 22 (10th Cir.1965), cert. denied, 383 U.S. 933, 86 S.Ct. 1061,15 L.Ed.2d 851 (1966) (“infringement cannot be avoided by the mere fact that the accused device is more or less efficient or performs additional functions”)). TI argues that the Commission required too narrow a construction of the ’921 patent claims, contrary to this body of precedent, so that the Commission in effect limited the claims to the means that were illustrated in the specification. As stated in D.M.I.: To interpret “means plus function” limitations as limited to a particular means set forth in the specification would be to nullify the provision of § 112 requiring that the limitation shall be construed to cover the structure described in the specification and equivalents thereof. Pat-entees are required to disclose in the specification some enabling means for accomplishing the function set forth in the “means plus function” limitation. 755 F.2d at 1574, 225 USPQ at 238 (emphasis in original). Pertinent is the court’s holding that there is and can be no requirement that applicants describe or predict every possible means of accomplishing that function. Id. TI asserts that the accused devices perform all the steps of the claims, and that the detailed means by which these steps are carried out, where not described or predicted by the patentees, are the same as or equivalent to the means described in the specification. The AU considered each step of the claims, and made extensive findings as to the structure and operation of the accused calculators in comparison with that described in the ’921 specification. The AU’s findings on the structure of the various devices are generally uncontroverted on this appeal, but his findings as to their operation, as well as his construction of the claims, are contested as is the conclusion" }, { "docid": "23649128", "title": "", "text": "proceeding under such circumstances, while technically correct, ignores reality. It is, in my view, more appropriate to view it here as collateral to the pending litigation, although without res judicata effect against the alleged infringer if the claims are held valid. 3 Chisum, Patents § 11.07[4][f], at 11-128 (1984). I agree with the majority that reexamination should work in such a manner that it will be “neutral.” However, the decision today, in my view, will make patent owners resistent to reexamination. The deck is stacked against them by this decision and by In re Yamamoto, 740 F.2d 1569, 1571, 222 USPQ 934, 936 (Fed.Cir.1984). The court has made reexamination into a proceeding which affords advantages to an infringer over his position in court. Delay itself is an advantage to an in-fringer of greater economic power than the patent owner, and the lack of res judicata effect against the infringer gives that party two opportunities to attack the patent. These advantages are inherent in reexamination and must be accepted as the quid pro quo for the perceived benefits of reexamination. We need not, however, go further and, as a matter of statutory interpretation, also change the rules by which validity is to be judged to the infringer’s benefit. An infringer may well have evidence which is sufficient to meet the low threshold of “a substantial new question of patentability”, but not sufficiently persuasive in court to overcome the presumption of validity, including the burden of clear and convincing proof. This might be particularly true where evidence is submitted to the PTO in the form of affidavits of experts or others who thereby escape the testing of cross examination. With respect to claim construction, claims in litigation are to be “so construed, if possible, as to sustain their validity.” ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 1577, 221 USPQ 929, 932 (Fed.Cir.1984), citing Klein v. Russell, 86 U.S. (19 Wall.) 433, 466, 22 L.Ed. 116 (1874); Turrill v. Michigan, S. & N.I. R.R., 68 U.S. (1 Wall.) 491, 510, 17 L.Ed. 668 (1864). Claims in reexamination, on the other" }, { "docid": "22660296", "title": "", "text": "subject matter of the seven expressly disapproved cases illustrates these problems. 1. McGill, Inc. v. John Zink Co., 736 F.2d 666, 221 USPQ 944 (Fed.Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984). The disputed technical term in the patent claim was “recovered liquid hydrocarbon absorbent.” On McGill’s view of what this term meant, the Zink process would infringe McGill’s claim; on Zink’s view, the Zink pro cess would not infringe. There was conflicting testimony of technical experts, and the issue was submitted to the jury. On appeal the Federal Circuit made the now-excoriated statement: If, however, the meaning of a term of art in the claims is disputed and extrinsic evidence is needed to explain the meaning, construction of the claims could be left to the jury. In the latter instance, the jury cannot be directed to the disputed meaning for the term of art. Id. at 672, 221 USPQ at 948 (citations omitted). On appellate review the court considered the meaning of the claims upon the following criterion: In the instant case, the jury’s finding of infringement was predicated on construction of claim 2. To obtain a reversal, Zink must demonstrate that no reasonable juror could have interpreted the claim in the fashion that supports the infringement finding.... Zink must convince us that there is no set of facts, consistent with McGill’s interpretation, that was supported by substantial evidence. Id. The majority now holds that the meaning of “recovered liquid hydrocarbon absorbent” and the other disputed technical terms that were at issue was not a jury triable issue, and that the Federal Circuit should have, and hereafter will, decide such questions as a matter of law. 2. Bio-Rad Labs., Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 222 USPQ 654 (Fed.Cir.), cert. denied, 469 U.S. 1038, 105 S.Ct. 516, 83 L.Ed.2d 405 (1984). The patented device was an interferometer that contained an oscillating mirror that varied the lengths of two of four possible paths of split beams of reflected light, whereby the thickness of the epitaxial layer of a semiconductor was determined from the" }, { "docid": "22202500", "title": "", "text": "would use that standard to review the fact question of literal infringement, i.e., do properly interpreted claims read on the accused product or process. ACS Hospital Systems, Inc., v. Montefiore Hospital, 732 F.2d 1572, 1582, 221 U.S.P.Q. 929, 936 (Fed.Cir.1984). The patent law “allows the inventor to be his own lexicographer.” Autogiro Co. of America v. United States, 384 F.2d 391, 397, 155 U.S.P.Q. 697, 702, 181 Ct.Cl. 55 (1967). To ascertain the true meaning of disputed claim language, resort should be made to the claims at issue, the specification, and the prosecution history. See, e.g., McGill, Inc. v. John Zink Co., 736 F.2d 667, 673-675, 221 U.S.P.Q. 944, 948-951 (Fed.Cir.), cert. denied, — U.S. —, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984); Fromson, 720 F.2d at 1569-1571, 219 U.S.P.Q. 1140, 1141. Moreover, claims should be construed as they would be by those skilled in the art. Fromson, 720 F.2d at 1571, 219 U.S.P.Q. at 1142. 2. Claim Interpretation — “Room Temperature” and “Absence of Transition Metal” Limitations The ’012 patent discloses that the ingredients of the composition may be mixed and stored at ordinary room temperature, but that disclosure, like that of the ’400 patent, fails to indicate that the composition of the claims must be able to cure anaerobically at room temperature. Both disclosures are devoid of any teaching that suggests the criticality of a particular temperature to effectuate cure — the emphasis is on the presence or absence, of oxygen. Indeed, expert witnesses representing both parties testified at trial that there is no requirement that an “anaerobic” curing composition has to be one that is able to cure anaerobically at room temperature. The ’012 patent itself teaches a cure at room temperature or higher: The time required to form such a bond upon the exclusion of air may be varied over a wide range by the proper selection of the particular materials and the amounts thereof, and by varying the temperature during polymerization. That the specific examples set forth in the patents occur at room temperature does not mean that the claims are imbued with a room" }, { "docid": "17802241", "title": "", "text": "of proving infringement by a preponderance of the evidence.” Hughes Aircraft, 717 F.2d at 1361, citing, Roberts Dairy Co. v. United States, 182 USPQ 218, 227 (Trial Div., Ct.Cl.1974), aff'd, 530 F.2d 1342, 1357, 198 USPQ 383 (Ct.Cl.1976). Defendant’s Generation I CDI System The plaintiff alleges that claims 1-5 of the ’837 patent are infringed by all the defendant’s Generation I CDI systems manufactured or sold after July 19, 1977. Literal Infringement analysis begins by looking at the language of the claims asserted. (Appendix E) King Instrument, 767 F.2d at 862. Further, “[p]atent infringement is determined by a comparison of the claims of the patent with the accused device of the infringer.” Darda, Inc., USA v. Majorette Toys (U.S.), Inc., 627 F.Supp. 1121, 1136, 229 USPQ 103 (S.D.Fla. 1986), citing, Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 221 USPQ 649 (Fed. Cir.1984), cert. denied, 469 U.S. 924, 105 S.Ct. 306; 83 L.Ed.2d 240, 244 USPQ 616 (1984); ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 221 USPQ 929 (Fed.Cir.1984). The claims at issue have been interpreted in previous sections of this opinion and that process need not be repeated here. A careful comparison of claims 1-5 of the ’837 patent and the defendant’s accused Generation I CDI system reveals that claims 1-5 of the ’837 patent read on the defendant's accused Generation I CDI system. Consequently all of the defendant’s Generation I CDI systems sold or manufactured after July 19, 1977 infringe the plaintiff's United States Patent No. Re. 31,837. Claims 6-10 of the ’837 patent were not issued until February 26, 1985 and there was no evidence that the defendant sold or manufactured the accused Generation I CDI systems after that date. Therefore, claims 6-10 of the United States Patent No. Re. 31,387 are not infringed by the defendant’s Generation I CDI systems. Defendant’s Generation II CDI Systems The plaintiff alleged that the defendant’s accused Generation II CDI system infringed claim 6 of the ’837 patent. However, no argument or evidence at trial was directed to prove such infringement. In addition, in the plaintiff’s post-trial brief" }, { "docid": "17802240", "title": "", "text": "was withheld with an intent to defraud the PTO or that such conduct breached the duty of candor. INFRINGEMENT There can be two types of infringement: literal or equivalent. Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950); see also, Great Northern Corp. v. Davis Core & Pad Co., Inc., 782 F.2d 159, 165-166, 228 USPQ 356 (Fed.Cir.1986); Loctite Corp. v. Ultraseal, LTD., 781 F.2d 861, 865-870, 228 USPQ 90 (Fed.Cir.1985); Datascope Corp. v. SMEC, Inc., 776 F.2d 320, 324-326, 226 USPQ 402 (Fed.Cir.1985); King Instrument Corp. v. Otari Corp., 767 F.2d 853, 862, 226 USPQ 402 (Fed.Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986); Radio Steel & Mfg. Co. v. MTD Products, Inc., 731 F.2d 840, 847, 221 USPQ 657 (Fed.Cir.1984), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 62 (1984); Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1360-1366, 219 USPQ 473 (Fed. Cir.1983). The party alleging infringement has the “burden of proving infringement by a preponderance of the evidence.” Hughes Aircraft, 717 F.2d at 1361, citing, Roberts Dairy Co. v. United States, 182 USPQ 218, 227 (Trial Div., Ct.Cl.1974), aff'd, 530 F.2d 1342, 1357, 198 USPQ 383 (Ct.Cl.1976). Defendant’s Generation I CDI System The plaintiff alleges that claims 1-5 of the ’837 patent are infringed by all the defendant’s Generation I CDI systems manufactured or sold after July 19, 1977. Literal Infringement analysis begins by looking at the language of the claims asserted. (Appendix E) King Instrument, 767 F.2d at 862. Further, “[p]atent infringement is determined by a comparison of the claims of the patent with the accused device of the infringer.” Darda, Inc., USA v. Majorette Toys (U.S.), Inc., 627 F.Supp. 1121, 1136, 229 USPQ 103 (S.D.Fla. 1986), citing, Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 221 USPQ 649 (Fed. Cir.1984), cert. denied, 469 U.S. 924, 105 S.Ct. 306; 83 L.Ed.2d 240, 244 USPQ 616 (1984); ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 221 USPQ 929 (Fed.Cir.1984). The claims at" }, { "docid": "22117125", "title": "", "text": "if it performs substantially the same function in substantially the same way and for substantially the same purpose as the claims set forth[,] and also considered “a combination claim containing several elements, each considered to be essential and equal to all others” [emphasis added]. The court held that: “For there to be infringement, it is necessary that every element or its substantial equivalent be found in the accused structures.” Id. at 403, 181 Ct.Cl. at 71, 155 USPQ at 707. In Lemelson v. United States, 752 F.2d 1538, 1551, 224 USPQ 526, 533 (Fed.Cir.1985) the court stated that each element of a claim is “material and essential”, and held that the essential “manipulation means” in the patented combination was absent in the accused device, with no substantial equivalent therefor. In ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 221 USPQ 929 (Fed.Cir.1984), the court based its decision on the assumption that the omission of the claimed function changed the way the device as a whole worked: We infer that the district court necessarily found that the Wells device, lacking the claimed function of overriding a locked key switch, does not function in substantially the same way as the claimed invention, [emphases added] Id. at 1582, 221 USPQ at 936. Whether an element is essential is determined with the guidance of the prosecution history and the prior art. In Chemical Engineering Corp. v. Essef Industries, Inc., 795 F.2d 1565, 1572-73, 230 USPQ 385, 390-91 (Fed.Cir.1986), this court held: Concerning infringement under the doctrine of equivalents, the district court correctly noted that the prosecution his tory of the McLean patent established that raising the pH in the specific manner claimed was crucial to patentability of McLean’s invention, rendering a device that did not raise pH, as is here undisputed, one that did not function in substantially the same way. [emphasis added] See also Stewart-Warner Corp. v. City of Pontiac, Michigan, 767 F.2d 1563, 1571-72, 226 USPQ 676, 681-82 (Fed.Cir.1985); Builders Concrete, Inc. v. Bremerton Concrete Products Co., 757 F.2d 255, 225 USPQ 240 (Fed.Cir.1985). None of this jurisprudence supports the" }, { "docid": "14692826", "title": "", "text": "as to repair parts, the result of mistake and an inability to differentiate between repair and reconstruction parts in the context of compound bows and not the result of an intent to extend the patent monopoly to unpatented articles. It is this court’s opinion, as it was that of the Jennings court, that collection and acceptance of royalties on repair parts by Mr. Allen or Allen does not constitute misuse of the Allen Patent. Finding 83. There is no allegation that Allen intended to collect royalty payments for replacement parts, and the language of the licenses is to the contrary. Cf. Mercoid Corp. v. Minne apolis-Honeywell Regulator Co., 320 U.S. 680, 684, 64 S.Ct. 278, 280, 88 L.Ed. 396 (1944). Browning has not shown that Allen Archery misused its patent. In so holding, we intimate no view on whether a license that covered repair parts would be illegal as involving patent misuse. IV INFRINGEMENT A. Browning contends that none of the bows introduced in evidence was manufactured before the complaint was filed. The district court found, however, that \"each of the ... compound bow[s] manufactured and sold by the Browning parties is mechanically the same as\" the Browning bows that were introduced in evidence. Finding 31. Browning does not contend that this finding was clearly erroneous, and we cannot say that it is. The alleged error to which Browning refers was harmless. The cases Browning cites, Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 221 U.S.P.Q. 1 (Fed.Cir.1984), and Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 221 U.S.P.Q. 649 (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240, 224 U.S.P.Q. 616 (1984), simply recite the truism that infringement must be established by comparison of the claims with devices sold before suit. The Bingham defendants complain that the district court held them liable for infringement based solely on (1) their stipulation that they sold compound bows and (2) their advertising infringing bows in their catalog. This is in essence the assertion that proof of infringement requires production of an actual infringing device the accused infringer sold." }, { "docid": "22202499", "title": "", "text": "not persuaded that the two operate in substantially the same way. Thus, I do not believe that Ultraseal is guilty of infringement.” Id. at 71. The district court read into the definition of “anaerobic” a requirement of being able to cure anaerobically rapidly and spontaneously at room temperature and in the absence of transition metal. We agree with including that requirement for the ’012 claims, but not for the ’400 claim. We also disagree with the district court’s treatment of the doctrine of equivalents, which is relevant to the ’012 (and possibly the ’400) patent under our analysis. Accordingly, we vacate the judgment of no infringement, and remand for further proceedings. 1. Claim Interpretation — In General Claim interpretation, a threshold inquiry when resolving infringement, is a question of law. Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569, 219 U.S.P.Q. 1137, 1140 (Fed.Cir.1983). Hence, when interpreting “anaerobic” we need not defer to the district court under a “clearly erroneous” standard. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 782 (Fed.Cir.1985). We would use that standard to review the fact question of literal infringement, i.e., do properly interpreted claims read on the accused product or process. ACS Hospital Systems, Inc., v. Montefiore Hospital, 732 F.2d 1572, 1582, 221 U.S.P.Q. 929, 936 (Fed.Cir.1984). The patent law “allows the inventor to be his own lexicographer.” Autogiro Co. of America v. United States, 384 F.2d 391, 397, 155 U.S.P.Q. 697, 702, 181 Ct.Cl. 55 (1967). To ascertain the true meaning of disputed claim language, resort should be made to the claims at issue, the specification, and the prosecution history. See, e.g., McGill, Inc. v. John Zink Co., 736 F.2d 667, 673-675, 221 U.S.P.Q. 944, 948-951 (Fed.Cir.), cert. denied, — U.S. —, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984); Fromson, 720 F.2d at 1569-1571, 219 U.S.P.Q. 1140, 1141. Moreover, claims should be construed as they would be by those skilled in the art. Fromson, 720 F.2d at 1571, 219 U.S.P.Q. at 1142. 2. Claim Interpretation — “Room Temperature” and “Absence of Transition Metal” Limitations The ’012 patent discloses that the ingredients" }, { "docid": "23045157", "title": "", "text": "the distance and height parameters of the claims of the ’876 patent, assuming the other claim limitations are also met, there would, contrary to the court’s conclusion, be literal infringement. Whether or not Uniroyal has relied on the parameters in the claims is irrelevant if its device in fact falls within those limitations. Similarly, in a doctrine of equivalents analysis, if it is established that Uniroyal does not rely on the claimed height and positioning parameters, that does not, standing alone, demonstrate absence of infringement. Only if this fact shows that Uniroyal’s device does not perform in substantially the same manner would it be probative of no infringement under the doctrine and the court should make this determination on remand. As noted, the other two aspects of the doctrine (function and result) were satisfied. Finally, the district court erred in finding Uniroyal’s improvement over the claimed invention to be a distinguishing feature. The district court said “the device differed from the ’876 patent in that it was designed to be an adjustable deflector” and concluded that this was another reason it was noninfringing under the doctrine of equivalents. Adding features to an accused device will not result in noninfringement if all the limitations in the claims, or equivalents thereof, are present in the accused device. Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1482, 221 U.S.P.Q. 649, 653 (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240, 224 U.S.P.Q. 616 (1984) (“[Modification by mere addition of elements or functions ... cannot negate infringement”). CONCLUSION The portion of the judgment holding the ’876 patent to be invalid under section 103 for obviousness is reversed. The portion of the judgment that claims 1 and 2 of the ’876 patent are not literally infringed is reversed and that claims 3 and 4 are not literally infringed is affirmed. The portion of the judgment that the claims are not infringed under the doctrine of equivalents is vacated. The case is remanded to the district court for further proceedings consistent with this opinion. AFFIRMED-IN-PART, REVERSED-IN-PART, VACATED-IN-PART AND REMANDED. APPENDIX 1. In combination" }, { "docid": "22117049", "title": "", "text": "its substantial equivalent in the accused device.” 752 F.2d at 1551, 224 USPQ at 533 (emphasis added). ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 1582-83, 221 USPQ 929, 936 (Fed.Cir.1984), similarly holds: We infer that the district court necessarily found that the Wells device, lacking the claimed function of overriding a locked key switch, does not function in substantially the same way as the claimed invention. That inference is supported by the record. Accordingly, we conclude that the district court’s finding, that the Wells device does not infringe the Sonnenberg patent under the doctrine of equivalents, is not clearly erroneous. In Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1484, 221 USPQ 649, 655, (Fed.Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 240 (1984), this court refused to “undermine the long-established legal principle that non-infringement is shown when an element or step in the claims is missing from the accused product or process.... ” Accord Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1577, 1 USPQ2d 1593, 1604 (Fed.Cir.), cert. denied, — U.S. —, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987); Chemical Eng’g Corp. v. Essef Indus., Inc., 795 F.2d 1565, 1572-73, 230 USPQ 385, 390-91 (Fed.Cir.1986); Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1533, 3 USPQ2d 1321, 1325 (Fed.Cir.1987). The principle that infringement requires the presence of every element or its substantial equivalent in the accused device has also been the uniform law of every regional circuit. See 7 A. Deller, Walker on Patents §§ 531, 543, 564 (2d ed. 1972 & Supp.1985); 1 J. Hopkins, The Law of Patents 343 (1911) and cases cited therein. Nothing said in Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), represents a discarding of the principle that infringement requires an accused device to appropriate each element specified in a claim exactly or by an equivalent. Indeed, Graver Tank reaffirms that principle with guidance on what constitutes an equivalent of a required element. The Court’s analysis makes clear that only if all" } ]

[ { "docid": "16648578", "title": "", "text": "there is probable cause for the parole violation or that the defendant has absconded from parole. When declared, the delinquency interrupts the sentence by a period that begins with the commission of the charged parole violation and runs until the defendant is reincarcerated. In this case the interruption, the period between Calhoun’s arrest for the new crime and his reincarceration in the Steuben County jail, was short, only five days. Moreover, only two months remained until the maximum expiration date of his original sentence. If defendants wished to extend that date by the five-day delinquency period, they were constitutionally obliged to hold the final revocation hearing before the original maximum expiration date, or demonstrate that it would have been impracticable to do so. The state’s failure to provide a final parole revocation hearing when time constraints make it impracticable to do so is not a constitutional violation. B. Eighth Amendment Calhoun also claims that the extra five days of imprisonment violated his eighth-amendment protection against cruel and unusual punishment. In our view, the five-day extension of Calhoun’s release date did not inflict “a harm of a magnitude” that violates a person’s eighth amendment rights. Cf. Sample v. Diecks, 885 F.2d 1099, 1109 (3rd Cir.1989) (eighth amendment violation did result from nine-month detention beyond the expiration date). Moreover, even if we were to assume that the unauthorized addition of five days to a six-year sentence did constitute cruel and unusual punishment, Calhoun has failed to demonstrate that defendants were deliberately indifferent to his problem; Sample, 885 F.2d at 1110 (to establish § 1983 liability for violation óf eighth amendment, plaintiff must show that defendant had knowledge of prisoner’s problem and was deliberately indifferent to prisoner’s plight). In short, Calhoun’s claim under the eighth amendment fails. C. Qualified Immunity The doetrine of qualified immunity shields state officials from liability for damages if their actions did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known”, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), or in circumstances where the rights" } ]

[ { "docid": "12034127", "title": "", "text": "determinative of the present case. However, even taking appellant's petition as, in effect, an application for a writ of habeas corpus, we think the judgment of dismissal of the lower court should be affirmed since it appears on the face of the petition that appellant is not entitled to the writ. Appellant’s basic contention is that Section 4164 of Title 18 U.S.C.A., as applied to him in the circumstances disclosed by his petition, subjected him to double jeopardy in violation of the Fifth Amendment to the Federal Constitution. The statute, as has been noted, provides that a prisoner conditionally released on account of good time deductions shall be treated as released on parole and shall be subject to all provisions relating to parole until the expiration of the maximum term or terms for which he was sentenced. Section 4205 of the same Title provides that, when a prisoner is retaken for violation of his parole his unexpired term of imprisonment shall commence to run from the date he is returned to confinement and “the time the prisoner was on parole shall not diminish the time he was sentenced to serve.\" The constitutionality of such statutory conditional release procedure was upheld by this court in Chandler v. Johnston, 9 Cir., 133 F.2d 139, 142, and by other courts in: Story v. Rives, 68 App.D.C. 325, 97 F.2d 182; Dolan v. Swope, 7 Cir., 138 F.2d 301; Voorhees v. Cox, 8 Cir., 140 F.2d 132; Evans v. Hunter, 10 Cir., 162 F.2d 800; Hall v. Welch, 4 Cir., 185 F.2d 525; and O’Neal v. Fleming, 4 Cir., 201 F.2d 665. Each of the cited cases involved conditional release of a prisoner under the provisions of the same statute which appellant here attacks as unconstitutional. So long as it does not transcend constitutional limitations, such as the prohibition of cruel and unusual punishment, enactment of ex post facto laws and the like, Congress has the power to prescribe such punishment as it may see fit for violation of its valid criminal statutes. If the punishment is imprisonment, Congress may specify how and in" }, { "docid": "23271761", "title": "", "text": "amendment. All of the named defendants moved to dismiss Moore’s complaint for failure to state a claim under 42 U.S.C. § 1983. On July 8, 1991, the district court granted the motion to dismiss Moore’s claims against Chapel, Showronski, Vaughn and Burke. However, the district court allowed Moore to be proceed against Tartler, Dougherty and Marshall. . Tartler, Dougherty and Marshall assert that Sample v. Diecks is inapplicable to Moore’s case. They contend that Moore’s confinement at Graterford until March 29, 1991, was not beyond his maximum sentence and thus was not in violation of the eighth amendment. A sentencing judge is required to establish minimum and maximum sentencing dates under 42 Pa.Cons. Stat.Ann. §§ 9756(a) and (b). The parole board officials contend that had Moore been incarcerated beyond his maximum sentence date, then he would have had a right to release. Before that maximum time occurs, any parole is by \"the grace of the parole board” and can occur at any time between his minimum and maximum sentence. We disagree. The eighth amendment analysis \"is not whether or not an inmate has served beyond his maximum date, but whether there is incarceration without penological justification.” Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). We find that, when the judge clarified his sentencing order to indicate he meant immediate release, Moore was entitled to immediate release. We cannot disregard the intention of the sentencing judge that Moore serve no additional period of incarceration and that Moore be immediately released simply because Moore’s maximum sentence date had not expired. . In that case, the state investigated the prisoner's claim of sentence miscalculation and informed him that it disagreed with his interpretation of the relevant statute. Even though the state's position was ultimately shown to be mistaken, the court held that this fact alone did not indicate the culpability necessary for an eighth amendment violation. Lundblade, 631 F.Supp. at 219. . Because of our results, we do not to reach the issue of whether the parole board officials are entitled to qualified immunity." }, { "docid": "23271760", "title": "", "text": "Graterford’s Records Officer Stephen J. Tidey, which interpreted the judge’s sentencing order as providing for immediate release. The parole board submitted that it is not bound, however, by the Department of Corrections’s interpretation of a court order (Br. of Appellees p.7 n.2). . On November 21, 1990, Moore filed an Official Inmate Grievance at Graterford. He also sent Tartler a supplement to his initial appeal entitied \"Judicial Due Process Notification—Malicious Delay in Appropriate Response to Request for Administrative Relief.” . In his first claim in this complaint, Moore alleged that Hermann Tartler, John P. Showronski, Mario Chapel, Lawrence Dougherty, Gerald Marshall and Donald Vaughn deprived him of his constitutional rights by unlawfully detaining him beyond the expiration of his sentence. In his second claim, Moore asserted that Edward Burke, culinary manager at Graterford, and Dr. Gandy, a physician, subjected him to cruel and unusual punishment by serving him contaminated food and failing to provide adequate medical care for his subsequent food poisoning. In addition, Moore also alleged that prison conditions at Graterford violated the eighth amendment. All of the named defendants moved to dismiss Moore’s complaint for failure to state a claim under 42 U.S.C. § 1983. On July 8, 1991, the district court granted the motion to dismiss Moore’s claims against Chapel, Showronski, Vaughn and Burke. However, the district court allowed Moore to be proceed against Tartler, Dougherty and Marshall. . Tartler, Dougherty and Marshall assert that Sample v. Diecks is inapplicable to Moore’s case. They contend that Moore’s confinement at Graterford until March 29, 1991, was not beyond his maximum sentence and thus was not in violation of the eighth amendment. A sentencing judge is required to establish minimum and maximum sentencing dates under 42 Pa.Cons. Stat.Ann. §§ 9756(a) and (b). The parole board officials contend that had Moore been incarcerated beyond his maximum sentence date, then he would have had a right to release. Before that maximum time occurs, any parole is by \"the grace of the parole board” and can occur at any time between his minimum and maximum sentence. We disagree. The eighth amendment analysis" }, { "docid": "16648579", "title": "", "text": "of Calhoun’s release date did not inflict “a harm of a magnitude” that violates a person’s eighth amendment rights. Cf. Sample v. Diecks, 885 F.2d 1099, 1109 (3rd Cir.1989) (eighth amendment violation did result from nine-month detention beyond the expiration date). Moreover, even if we were to assume that the unauthorized addition of five days to a six-year sentence did constitute cruel and unusual punishment, Calhoun has failed to demonstrate that defendants were deliberately indifferent to his problem; Sample, 885 F.2d at 1110 (to establish § 1983 liability for violation óf eighth amendment, plaintiff must show that defendant had knowledge of prisoner’s problem and was deliberately indifferent to prisoner’s plight). In short, Calhoun’s claim under the eighth amendment fails. C. Qualified Immunity The doetrine of qualified immunity shields state officials from liability for damages if their actions did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known”, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), or in circumstances where the rights were clearly established, if it was objectively reasonable for defendants to believe that their acts did not violate those rights, see Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The official does not have immunity, however, where the , “contours of the right” were sufficiently clear for a reasonable official to understand that what he is doing violates that right. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039; Vasbinder v. Ambach, 926 F.2d 1333, 1341 (2d Cir.1991). To determine whether a particular right was clearly established at the time defendants acted, a court should consider: (1) whether the right in question was defined with “reasonable specificity”; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3)’ whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful. Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1565, 118 L.Ed.2d" }, { "docid": "796462", "title": "", "text": "PER CURIAM. The District Court treated this as an application for a writ of habeas corpus. So do we. As such it was denied. We affirm. The question is whether statutory good time commutation credits awarded by the prison authorities reduce the sentence — not merely the time of confinement — so that the prisoner becomes unconditionally free and not thereafter subject to revocation of his conditional release at any time up to the expiration date of his maximum term. Petitioner’s contention is this. His 10-year sentence normally would have expired August 5, 1962. Under the good time allowances of 18 U.S.C.A. §§ 4161, 4162 plus the 180 days of § 4164 the credits totalled 1091 days. Therefore, deducting these credits the sentence would expire August 9, 1959, provided only that such credits were still effective as of such date. On December 28, 1958 Petitioner was granted conditional release under the statutory program, 18 U.S.C.A. §§ 4161-4166. Subsequent to August 9, 1959 and on November 15, 1959, he was returned to custody for violation of a condition of his release. On this he argues that whatever might have been the case in the event of forfeiture of credits prior to August 9, 1959, once that date passed with credits still effective the sentence expired. He bases this principally on the provision of § 4161 which requires that “Each prisoner * * * shall be entitled to a deduction from the term of his sentence * * * ” for good time earned. The statute makes clear that a prisoner freed under the conditional release provisions “shall * * * be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” 18 U.S.C.A. § 4164. Under the parole provisions “A warrant for the retaking of any * * * prisoner-who has violated his parole, may be issued * * * within the maximum term or terms for which he was sentenced.” 18 U.S.C.A. § 4205. The parole may thereafter be terminated and “the said prisoner" }, { "docid": "22130743", "title": "", "text": "be set free — more than nine months after his sentence should have been completed. On June 17, 1981, Sample filed a damages suit under 42 U.S.C. § 1983 against Diecks and against appellant William Robinson, who was at that time the Commissioner of the Pennsylvania Bureau of Corrections. Sample claimed that, “[b]y unlawfully detaining and falsely imprisoning [him] for nine months and eight days longer than the five year maximum to which he was sentenced,” Diecks and Robinson had deprived him of his constitutional rights under color of state law. ¶ 13, Amended Complaint; app. at 39-40. Sample represented himself in a hearing on May 4, 1982 before Chief Magistrate Ila Jeanne Sensenich of the Western District of Pennsylvania, who was delegated the responsibility of hearing pretrial motions under 28 U.S.C. § 636(b)(1)(A) and holding an evidentiary hearing under 28 U.S.C. § 636(b)(1)(B). The magistrate determined that the factual issues were complex enough to require appointed counsel. Accordingly, Sample was represented by counsel at a second hearing, on August 4, 1986. Magistrate Sensenich submitted proposed factual and legal findings in accordance with 28 U.S.C. § 636(b)(1)(C). Finding that Diecks had violated the eighth amendment’s prohibition of cruel and unusual punishment by failing to take any meaningful action in response to Sample’s complaint concerning his confinement beyond his release date, she recommended that judgment be entered for Sample on his claim against Diecks in the amount of $3,520. Regarding Sample’s claim against Commissioner Robinson, the magistrate concluded that Robinson had violated Sample’s right to procedural due process under the fourteenth amendment by “failing] to establish a system by which [Sample] could effectively challenge the computation of his sentence_” App. at 182. Accordingly, she recommended that Robinson be held jointly and severally liable for the amount awarded to Sample on his claim against Diecks. The district court adopted the magistrate’s proposed findings and recommendations in their entirety. We have jurisdiction to review the district court’s final order under 28 U.S.C. § 1291. I. Three of Sample’s sentences are relevant to the issues raised in this appeal: a sentence imposed on a" }, { "docid": "14574026", "title": "", "text": "be released goes to the issue of causation of the injury, and is not at issue on qualified immunity. Id. at 1399 n. 13. Although the Eighth Amendment clearly applies to the state defendants, the connection with the county defendants is considerably more attenuated. Plaintiff was not in the physical custody of the Sheriff during the unlawful detention, nor could the Sheriff directly order plaintiffs release. However, the same was true of many of the defendants in Haygood, Alexander, and Sample who were mostly records clerks with a duty to investigate complaints or furnish accurate information to those officials in a position to determine whether the inmate should be released. Here, a jury could find that the county defendants: (1) knew plaintiff was entitled to time served credits for the time he was confined by Marion County following his arrest, (2) had a duty to transmit those credits, (3) knew plaintiff would not receive the credits unless they acted, and (4) knew that as a result of their inaction he would serve additional time in prison unnecessarily and contrary to law. There is a sufficient relationship between the act or omission and the result to state a claim against the county defendants for violating plaintiff’s Eighth Amendment rights. 3. Qualified Immunity: Defendants contend they are entitled to qualified immunity because plaintiff had no clearly established right to be released prior to the date his original sentence (i.e., the sentence pronounced by the judge) expired. I disagree. Defendants rely upon a First Circuit case holding that the right of a Massachusetts inmate to due process in the rescission of a reserve parole date was not clearly established under Massachusetts law in 1984. Lanier v. Fair, 876 F.2d 243, 253 (1st Cir.1989). That has no bearing upon a liberty interest in a credit for time served under Oregon law in 1989-90. Furthermore, the Lanier court held that the inmate did have a liberty interest in his reserve parole date because Massachusetts law provided that a parole date could not be revoked unless certain specific findings were made (e.g., serious misconduct, new criminal" }, { "docid": "16648563", "title": "", "text": "GEORGE C. PRATT, Circuit Judge: Plaintiff-appellant Bennie F. Calhoun, pro se, appeals from a summary judgment of the United States District Court for the Western District of New York, Kenneth R. Fisher, magistrate judge, that dismissed his complaint filed under 42 U.S.C. § 1983. The magistrate judge held (1) that when defendants extended his maximum expiration date (the latest date by which a defendant must be released from prison) by five days based upon a “declaration of delinquency”, without affording Calhoun the final parole-revocation hearing required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), they violated his due process rights; but (2) that defendants’ conduct did not constitute cruel and unusual punishment under the eighth amendment;. (3) that defendants James McGuire and Ted R. Clark were not personally involved in the due process violation; and (4) that defendants Ronald P. White and Gary Stern, who were personally involved, were nevertheless entitled to qualified immunity. On appeal, Calhoun advances two arguments: that the magistrate judge erred in finding no eighth-amendment violation, and in granting qualified immunity to defendants White and Stern. For the reasons set forth below, we affirm. BACKGROUND Calhoun’s appeal focuses on the events that occurred after he was arrested on April 17, 1985, by New York State parole officials, based on a warrant charging him with violating his parole from a state-court sentence that was to expire two months later, on June 9, 1985. The facts are undisputed. On September 5, 1979, Calhoun was convicted in New York State of forgery in the second degree and sentenced to an indeterminate term of imprisonment of 0-6 years, with an original maximum expiration date of June 9, 1985. On July 24, 1984, he was released to parole supervision, subject to the usual conditions of release. Calhoun’s supervision was assigned in the Rochester area office to parole officer Stern, who was directly supervised by senior parole officer White, both of whom are defendants in this case. On April 11, 1985, approximately two months before expiration of his parole term, Calhoun was arrested in Bath, Steuben" }, { "docid": "23300107", "title": "", "text": "1474 (9th Cir.1992))); Armstrong v. Squadrito, 152 F.3d 564, 576 (7th Cir.1998) (concluding that the Due Process Clause guards against prolonged detentions without an appearance when a detainee complains of confinement following arrest pursuant to valid warrant); Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir.1990) (“[P]rison officials who are under a duty to investigate claims of computational errors in the calculation of prison sentences may be liable for their failure to do so when a reasonable request is made.”); Golson v. Dep’t of Corrections, 914 F.2d 1491, 1990 WL 141470, *1 (4th Cir. Oct. 2, 1990) (unpublished table decision) (“Incarceration beyond the termination of one’s sentence may state a claim under the due process clause and the eighth amendment.”); Douthit v. Jones, 619 F.2d 527, 532 (5th Cir.1980) (finding claim based on continued confinement without valid judicial order was cognizable under § 1983 as a deprivation of due process); cf. Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.1993) (“Subjecting a prisoner to detention bé-yond the termination of his sentence has been held to violate the eighth amendment’s proscription against cruel and unusual punishment.... [W]e did find that an eighth amendment violation occurred when an inmate was imprisoned nine months and eight days after the expiration of his sentence.”); Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir.1989) (“We think there can be no doubt that imprisonment beyond one’s term constitutes punishment within the meaning of the eighth amendment.”). For instance, the Eleventh Circuit has held that prisoners have a “constitutional right to be free from continued detention after it was or should have been known that the detainee was éntitled to release” and, in a misiden-tification case, cited cases from the Fifth and Seventh Circuits that also specifically recognized this right. Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir.1993) (citing Sivard v. Pulaski County, 959 F.2d 662 (7th Cir.1992) (finding continued detention where sheriff knew it was wrongful states claim under § 1983 for due process violation), unrelated modification on rehearing, 15 F.3d 1022 (11th Cir.1994) (per curiam); Sanders v. English, 950 F.2d 1152 (5th Cir.1992)" }, { "docid": "16641267", "title": "", "text": "statute, the Adult Authority has responsibility for granting the conditional release and ultimate discharge of inmates. Conditional release is granted, upon conditions which the Adult Authority may impose, when an inmate has served his maximum term, less such work and good behavior credits as he has earned. K.S.A. 22-3718. Discharge is granted to an inmate on conditional release when he has satisfied the Adult Authority that his final release “is not incompatible with the best interests of society and the welfare of the individual.” In no case can the discharge be made within a period of less than one year after the date of conditional release, except where the sentence expires within the year. A prisoner cannot be kept beyond his maximum sentence. K.S.A. 22-3722. This court finds that under the “nature and quality” test the function of determining what conditions to place upon an inmate on conditional release and the decision whether a final release is compatible with the best interests of society and the individual are discretionary acts. Plaintiffs argue that some of the responsibilities of the Adult Authority are purely ministerial, such as granting conditional release by computing the maximum term of the inmate minus his work and good time credits. There is no allegation here that the computation of time leading to the conditional release of Boan was negligently made; nor is there any allegation that if the computation had been properly made the damages herein would not have occurred. Rather, the allegations go to the exercise of discretion by the Adult Authority members. Therefore, plaintiffs’ state law claims against the individual members of the Adult Authority are barred by the discretionary acts exception to the Kansas Tort Claims Act. B. Wyandot and K.U. Psychiatry Defendants The Wyandot defendants and the K.U. Psychiatry Foundation defendants also seek to dismiss the state law claims. Plaintiffs have alleged negligence against these defendants in regard to the care and treatment of Bradley R. Boan, and for their failure to take precautions to deal with the violent and dangerous propensities they knew or had reason to know Boan presented to" }, { "docid": "19043867", "title": "", "text": "hereby reduced by 394 days.” Petitioner states the following as grounds for his allegation that he is being held unlawfully: “Effective June 22, 1966, Section 3568, Title 18, United States Code provided that ‘the Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed’ and that the mandate from the United States Court of Appeals for the Eighth Circuit was issued and served after the effective date of that statute.” “That Section 4161 [of Title 18, U.S. C., providing for the deduction of good time allowances from the sentence] and 4164 [of the same title, providing that “a prisoner having served his term or terms less good time deduction shall, upon release, be deemed as released on parole until the expiration of the maximum term or terms for which he was sentenced less 180 days”] * * * are ambiguous and repugnant for the reason that under Section 4161 it is provided that good time ‘shall be entitled to a deduction from the term of his sentence’, consequently each sentence when imposed is subject to the reduction un der Section 4161 and therefore a ‘term’ is the sentence less allowance for good time. Section 4164, therefore, places a man on parole after he has served the maximum term of his sentence and is therefore a violation of due process of law under the Fifth Amendment of the United States Constitution and amounts to a cruel and unusual punishment as prohibited by the Eighth Amendment to the United States Constitution and is in effect a bill of attainder as prohibited by Section 9 of Article I of the Constitution of the United States. “That the defendant, United States Board of Paroles, is exercising and attempting to exercise authority over the plaintiff until the 2nd day of December, 1969 and that under the laws of the United States, including Section 4161 and 4164 of Title 18, United States Code, the defendant's computation of the time the plaintiff is to remain under" }, { "docid": "23271746", "title": "", "text": "OPINION OF THE COURT MANSMANN, Circuit Judge. We are asked to decide whether a six month delay in an inmate’s release from incarceration violates his eighth amendment right to be free from cruel and unusual punishment. Because we find that the delay did not result from deliberate indifference to the inmate’s liberty interest by parole board officials, the eighth amendment was not violated. We, therefore, will affirm the judgment of the district court granting summary judgment in favor of the parole board officials. I. On August 25, 1978, Charles E. Moore was sentenced to serve a term of imprisonment of 6 to 12 years in Pennsylvania state prison for a drug conviction. He began serving time on December 17, 1979, at the State Correctional Institute at Graterford. His minimum date for release was December 13, 1985 and his maximum date for release was December 15, 1991. Moore was paroled on his minimum date in 1985. On May 4, 1989, while on parole, Moore was arrested and charged with burglary and related offenses. Upon arrest, Moore was confined to the Philadelphia County Jail. On May 5, 1989, the Pennsylvania Board of Probation and Parole lodged a detainer against Moore for violating parole on the drug conviction. On June 29, 1989, the Philadelphia Court of Common Pleas reduced Moore’s bail on the burglary charge to Release on Own Recognizance and ordered Moore transferred to a state prison pursuant to the parole board’s detainer. On September 19, 1989, Moore was transferred to the State Correctional Institution at Graterford. On June 27, 1990, Moore was convicted on the burglary charges in the Court of Common Pleas of Philadelphia County and was sentenced to “time in to 23 months” in Philadelphia County Prison. On September 20, 1990, Moore had a hearing before the parole board examiner at Graterford. On October 23, 1990, the parole board ordered that Moore be “recommitted] as a C.P.V. (convicted parole violator) to a State Correctional Institution when available to serve six months back time.” On November 5, 1990, Moore appealed this decision by filing a Request for Administrative Relief to" }, { "docid": "18919167", "title": "", "text": "Id. Specifically, the official must have had either actual intent to cause the deprivation, or have been “deliberately indifferent” to a substantial risk that such a deprivation would occur. Id. at - -, 114 S.Ct. at 1977-78. The standard for deliberate indifference is subjective and based on actual knowledge of the substantial risk; “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at -, 114 S.Ct. at 1979. If, in the face of such knowledge, the official chose to do nothing to prevent the harm from occurring, the official would then be liable. Id. A. Campbell’s Deprivation was Sufficiently Serious Incarceration of an individual beyond the term of his sentence is “quintessentially punitive.” Sample v. Diecks, 885 F.2d 1099, 1108-09 (3rd Cir.1989); see also Moore v. Tartler, 986 F.2d 682 (3d Cir.1993); Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985); Lundblade v. Franzen, 631 F.Supp. 214 (N.D.Ill.1986). Even if such imprisonment is the result of an innocent error on the part of the state officials who were responsible, it is still punitive in nature, though the mistaken nature of the punishment may bear on whether the punishment was deliberately imposed. Id. at 1108-09. Anything more than a de minimis incarceration beyond a prisoner’s proper sentence satisfies the requirement, under Farmer, — U.S. at -, 114 S.Ct. at 1977, that the punishment, if inflicted along with the culpable state of mind, be “sufficiently serious” to pose a constitutional violation. See Haygood, 769 F.2d at 1354 (“[detention beyond the termination of a sentence could constitute cruel and unusual punishment if it is the result of ‘deliberate indifference’ to the prisoner’s liberty interest”). Here, plaintiff was imprisoned up to two years beyond his legal release date. The deprivation was sufficiently serious to support Campbell’s Eighth Amendment claim. B. Culpable State of Mind Whether defendants acted with a sufficiently culpable state of mind is the real question at issue here. As noted above, plaintiff has alleged that defendants, especially Williams intentionally engaged" }, { "docid": "22130757", "title": "", "text": "trial), are served by vesting the trial judge with that discretion. We find the district court’s decision to be well within its discretion. The factual issues raised by the assertion that Sample’s sentence had not expired on January 15,1980 were complex and neither Robinson nor Diecks offered (or even offer on appeal) any reason why they were justified in not earlier advancing their new theory. We cannot say that the district court abused its discretion by refusing to reward this unexplained behavior — behavior the record indicates caught Sample’s counsel as well as the magistrate by surprise. III. To recover on his § 1983 claim against Diecks, Sample must first show that Diecks acted under color of state law, a requirement conceded by Diecks. Diecks’ arguments lie with two other requirements of § 1983: that a federally secured right be implicated and that the defendant deprived the plaintiff, or caused the plaintiff to be deprived, of that right. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Diecks contests the district court’s factual findings that (1) his position as senior records keeper imposed upon him a duty to Sample to take steps regarding Sample’s release date, (2) that Diecks failed to take those steps, (3) and that his failure caused the deprivation of which Sample complains — Sample’s prolonged imprisonment. These findings are all essential to the district court’s conclusion that Diecks is liable under § 1983. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988). Before discussing these factual issues, however, we must first examine the legal issue of whether, if there was a deprivation, it was of a right secured by the Constitution, in this case by the “cruel and unusual punishment” clause of the eighth amendment. A. Whether Sample’s detention beyond the expiration of his term violated the eighth amendment requires us to consider wheth er that detention was “punishment” and, if so, whether it was “cruel and unusual.” We conclude that it was both. 1. We think there can be no doubt that imprisonment beyond one’s term constitutes" }, { "docid": "23300108", "title": "", "text": "violate the eighth amendment’s proscription against cruel and unusual punishment.... [W]e did find that an eighth amendment violation occurred when an inmate was imprisoned nine months and eight days after the expiration of his sentence.”); Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir.1989) (“We think there can be no doubt that imprisonment beyond one’s term constitutes punishment within the meaning of the eighth amendment.”). For instance, the Eleventh Circuit has held that prisoners have a “constitutional right to be free from continued detention after it was or should have been known that the detainee was éntitled to release” and, in a misiden-tification case, cited cases from the Fifth and Seventh Circuits that also specifically recognized this right. Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir.1993) (citing Sivard v. Pulaski County, 959 F.2d 662 (7th Cir.1992) (finding continued detention where sheriff knew it was wrongful states claim under § 1983 for due process violation), unrelated modification on rehearing, 15 F.3d 1022 (11th Cir.1994) (per curiam); Sanders v. English, 950 F.2d 1152 (5th Cir.1992) (holding failure to release after officer knew or should have known that plaintiff had been misidentified gives rise to cause of action under § 1983)). The state defendants primarily rely on Scull v. New Mexico, 236 F.3d 588 (10th Cir.2000) for the proposition that they did not have a duty to investigate Davis’s claim of wrongful incarceration. In Scull, an Ohio inmate, Timothy Reed, was paroled and ordered not to leave the state. Id. at 592. Fearing for his life, Reed fled Ohio and settled in New Mexico. Id. When he failed to appear after being charged with “terroristic threatening,” Ohio officials issued a warrant for his arrest. Id. In Taos County, New Mexico, Reed was arrested as a fugitive but obtained a writ of habeas corpus to avoid extradition back to Ohio. Id. The Taos County judge ordered that he be released from the custody of Taos' County. Id. State prosecutors appealed. Id. Nearly two years later, Reed was involved in a minor traffic accident in Ber-nalillo County, New Mexico and was arrested when" }, { "docid": "18919168", "title": "", "text": "result of an innocent error on the part of the state officials who were responsible, it is still punitive in nature, though the mistaken nature of the punishment may bear on whether the punishment was deliberately imposed. Id. at 1108-09. Anything more than a de minimis incarceration beyond a prisoner’s proper sentence satisfies the requirement, under Farmer, — U.S. at -, 114 S.Ct. at 1977, that the punishment, if inflicted along with the culpable state of mind, be “sufficiently serious” to pose a constitutional violation. See Haygood, 769 F.2d at 1354 (“[detention beyond the termination of a sentence could constitute cruel and unusual punishment if it is the result of ‘deliberate indifference’ to the prisoner’s liberty interest”). Here, plaintiff was imprisoned up to two years beyond his legal release date. The deprivation was sufficiently serious to support Campbell’s Eighth Amendment claim. B. Culpable State of Mind Whether defendants acted with a sufficiently culpable state of mind is the real question at issue here. As noted above, plaintiff has alleged that defendants, especially Williams intentionally engaged in a “diabolical scheme” to keep him in prison beyond his term. In support of his claim against Williams, plaintiff has submitted an affidavit from Frank Ralph of the Office of the State Appellate Defender’s Office, the attorney who represented him in the habeas corpus proceedings before the Illinois courts. (See Plaintiffs Response, Affidavit of Frank Ralph). In the affidavit, Ralph states that in his dealings with Williams, Williams exhibited a “very strong antagonism” towards plaintiff. Williams quotes from a letter written by another Assistant Appellate Defender, Verlin Meinz, in which Meinz also expresses concern about Williams’ attitude towards plaintiff. Meinz relates how Williams “denigrated our efforts on Mr. Campbell’s behalf, in the process referring to Mr. Campbell in the most unflattering ways.” He also points out that Williams appeared to be “absolutely gleeful” about the fact that, since a Michigan warrant for the plaintiff had been revived around the time that the Illinois court had ordered plaintiffs release, plaintiff was not to be fully released from custody. Meinz dealings with Williams led him “to" }, { "docid": "16648570", "title": "", "text": "office to lift the parole warrant on June 14, 1985. Calhoun was released on that date. Thus, without providing him with any hearing on the merits of the charged parole violation, the state extended Calhoun’s sentence by five days, simply because he had been charged with a violation of parole. Calhoun contends that this denied him due process. He claims that the defendants were required either to cancel the five days’ delinquency time or to hold a final revocation hearing to determine whether the conditions of his parole had been violated. His complaint under 42 U.S.C. § 1983 named as defendants four parole officers: James McQuire, Gary Stern, Ted Clark, and Ronald P. White. He sought from them damages in the amount of $1,500 for each day of his illegal detention. After the parties consented to proceed before United States Magistrate Judge Kenneth R. Fisher, see 28 U.S.C. § 636(c), both sides moved for summary judgment. In a lengthy decision and order dated October 1, 1992, the magistrate judge granted defendants’ motion for summary judgment, denied Calhoun’s cross motion for summary judgment, and denied his motion to amend the complaint. The magistrate judge held that Calhoun had a protectable liberty interest in being released on his maximum expiration date and that the practice of declaring a delinquency upon arrest and thereby extending the maximum expiration date required more process than was given Calhoun. The court rejected Calhoun’s claim that the extended detention violated his eighth amendment rights. The court also held that defendants Stern and White, who made recommendations regarding Calhoun’s delinquency date and his adjusted maximum expiration date, and who transmitted the parole board’s notices regarding such dates and his release, were protected by qualified immunity. With regard to defendants McQuire and Clark, who had merely executed the parole-violation warrant, the court held that they were not “personally responsible for the acts of which plaintiff truly complains.” Finally, the court held that the three-year statute of limitations barred Calhoun from amending the complaint to add the commissioners of parole who ultimately made the decisions regarding plaintiffs delinquency date, adjusted" }, { "docid": "6563656", "title": "", "text": "PER CURIAM: Joe McGill appeals from an order of the Southern District denying his petition for habeas corpus. On June 18, 1969, in the Supreme Court of New York County, appellant was convicted of the crime of criminal possession of a dangerous weapon and was sentenced to a four-year indeterminate term. After serving two years and eight months if his sentence, he was released from confinement on a conditional release, pursuant to New York Penal Law § 70.40. Eleven months later, appellant violated a condition of his release and was returned to prison. Prior to his conditional release, the maximum expiration date of appellant’s term was May 30,1972. However, when his release was revoked, the state, pursuant to the statutes governing conditional release, refused to give appellant sentence credit for the eleven months that he was conditionally released prior to his violation. As a result, the maximum expiration date of his sentence was extended to April 21, 1973. Appellant claims that the denial of sentence credit and the consequent extension of his maximum expiration date was improper. After vainly seeking habeas corpus in the state courts, appellant filed the present petition in the Southern District in which he raised the same claims he had asserted in the state proceeding. On appeal from the district court’s denial of his petition, appellant makes two contentions: 1) that the state’s depriving him of sentence credit for the time served on his conditional release prior to his violation and thus extending his maximum release date violated the double jeopardy clause of the fifth amendment, made applicable to the states by the due process clause of the fourteenth amendment; and 2) that by denying appellant, a conditional releasee, sentence credit while affording such credit to parolees who violate their parole, the state violated appellant’s right to equal protection of the law. For reasons that follow, we do not find these contentions to be meritorious and, therefore, we affirm the order of the district court. The New York conditional release provisions are very similar to the federal parole statute, which provides for denial of sentence credit" }, { "docid": "7899275", "title": "", "text": "specifying concurrent time, notwithstanding § 70.40(3)(c)(iii). . Although below Plaintiffs and the Defendants associated with the State of New York (“State Defendants”) agreed that Batthany was released on parole, the State Defendants suggest in their brief that Batthany was not a parolee at all, but rather was released on post-supervision release. Because the State Defendants admit that this distinction does not make a difference to the merits of this appeal, we do not address this potential factual disagreement and refer to both Sudler and Batthany throughout as \"parolees.” . Because Plaintiffs’ suits against the defendants associated with the City of New York (collectively, \"City Defendants”) were dismissed on a Fed.R.Civ.P. 12(b)(6) motion, we rely here on the allegations in Plaintiffs’ com plaint, rather than on the evidence they have adduced. . Only the procedural history relevant to this appeal is given here. . Judge Lynch denied a motion to reconsider his decision dismissing Sudler's complaint as against the City Defendants on October 14, 2009. . Plaintiffs' notice of appeal makes clear that they wish to challenge the orders granting the City Defendants' motions to dismiss, as well as the order granting the State Defendants’ motion for summary judgment. . The case against the City Defendants is addressed in section 4.b infra. . We have suggested in the past, and other courts within and without this Circuit have held, that detention beyond that authorized by law may violate the Eighth Amendment. See Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) (assuming that detention of a prisoner beyond the end of his term could violate the Eighth Amendment in appropriate circumstances, but finding no violation where the unauthorized detention lasted only five days and the plaintiff failed to demonstrate the defendants’ deliberate indifference); see also Sample v. Diecks, 885 F.2d 1099, 1108-10 (3d Cir.1989); Haygood v. Younger, 769 F.2d 1350, 1354-55 (9th Cir. 1985); Rivera v. Carroll, No. 07-civ-7847 (RJS), 2009 WL 2365240, at *6-7 (S.D.N.Y. Aug. 3, 2009). Plaintiffs, however, have not relied on the authority of the Eighth Amendment, either in their discussion" }, { "docid": "22130758", "title": "", "text": "contests the district court’s factual findings that (1) his position as senior records keeper imposed upon him a duty to Sample to take steps regarding Sample’s release date, (2) that Diecks failed to take those steps, (3) and that his failure caused the deprivation of which Sample complains — Sample’s prolonged imprisonment. These findings are all essential to the district court’s conclusion that Diecks is liable under § 1983. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988). Before discussing these factual issues, however, we must first examine the legal issue of whether, if there was a deprivation, it was of a right secured by the Constitution, in this case by the “cruel and unusual punishment” clause of the eighth amendment. A. Whether Sample’s detention beyond the expiration of his term violated the eighth amendment requires us to consider wheth er that detention was “punishment” and, if so, whether it was “cruel and unusual.” We conclude that it was both. 1. We think there can be no doubt that imprisonment beyond one’s term constitutes punishment within the meaning of the eighth amendment. Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1978) (confinement in prison or isolation cell is form of punishment under eighth amendment); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). Indeed, confinement in a prison pursuant to a conviction but beyond the term of a sentence seems to us to be quintessentially punitive. Here, for example, the state, through its official agents, intended to confine, did confine, and intended to continue to punish Sample throughout his confinement, including the unwarranted portion of it. Admittedly, the unwarranted portion of Sample’s incarceration was based upon an error: Had Diecks known that Sample’s sentence was complete, the record suggests that Diecks would no longer have detained him. Although a mistaken basis for detention may have some bearing on whether that detention was “cruel and unusual,” see infra, a mistaken basis for imprisonment does not alter the punitive nature of" } ]

[ { "docid": "18474401", "title": "", "text": "OPINION AND ORDER SCHEINDLIN, District Judge. On March 16, 2001, Alcatel Space S.A. and Alcatel Space Industries, S.A. (eollec-tively “Alcatel”) filed an action against Loral Space & Communications Ltd. (“Loral”), Loral Space & Communications Corp. (“LSCC”), Loral Spacecom Corp. (“LSC”), and Space Systems Loral, Inc. (“SS/L”), seeking to preliminary enjoin defendants from acting in derogation of two agreements executed by the parties: the April 22, 1991 Operational Agreement (the “Operational Agreement”) and the June 23, 1997 Alliance Agreement (the “Alliance Agreement”). Plaintiffs also seek, inter alia, (1) a declaration that the Agreements remain in full force and effect until lawfully terminated and that defendants must fully perform their contractual obligations under the Agreements; and (2) an order requiring defendants to proceed to arbitration as provided for in the Agreements. On March 29, 2001, defendants cross-moved to dismiss the Complaint and to compel arbitration. Since suit was filed, plaintiffs have requested arbitration and defendants have consented to arbitrate this dispute. See 4/11/01 Transcript of Oral Argument (“4/11/01 Tr.”) at 3. The arbitral tribunal will decide whether any party has breached the Agreements and whether they remain in full force and effect. Accordingly, the Court need only address plaintiffs’ request to preliminarily enjoin defendants from acting in derogation of the Agreements, pending a decision by the arbitral tribunal. On March 30, 2001, the parties stipulated to an order preserving the status quo until April 26, 2001. Oral arguments were held on March 21 and April 11, 2001. For the reasons that follow, plaintiffs’ motion for a preliminary injunction is granted. I. BACKGROUND A. The Parties Alcatel Space, S.A. is a French societe anonyme, and is the sole owner of Alcatel Space Industries, S.A., also a French so-ciete anonyme, which ranks among the world’s leading space systems manufacturers. See Complaint ¶¶ 8, 9. Loral Space & Communications Ltd., a Bermuda company -with its principal place of business in New York, New York, manufactures and operates geosynchronous and low-earth orbit satellite systems and develops satellite-based networks for communications and information services. See id. ¶ 10. SS/L is a Delaware corporation with its principal place" } ]

[ { "docid": "18474409", "title": "", "text": "Letter at 1-2; see also Complaint ¶ 28. On February 23 and February 28, 2001, Alcatel responded to Loral’s letter and explained that Alcatel had not breached the Agreements, that the Agreements do not provide for immediate termination, and that any dispute involving the Agreements or their breach must be submitted to arbitration. See Barkats Deck ¶ 25; 2/28/01 Letter from Marc Jany, Alcatel’s Senior Vice President and General Counsel, to Zahler, Ex. 6 to Barkats Deck On March 5, 2001, Loral purported to withdraw without prejudice the immediate termination of the Operational Agreement, but maintained that the one-year notice of termination had been effected. See Complaint ¶ 30; 3/5/01 Letter from Zahler to Jany (“3/5/01 Zahler Letter”), Ex. 7 to Barkats Decl. As the alliance has been winding down, Loral has been pursuing “new strategic business opportunities for it and its subsidiaries.” 3/29/01 Declaration of Eric J. Zahler in Support of Defendants’ Opposition to Plaintiffs’ Motion for an Injunction Pending Arbitration and in Support of Cross-Motion to Compel Arbitration (“Zahler Deck”) ¶ 10. Indeed, “[a]t this time, Loral has engaged in discussions with [the Prohibited Third Party] regarding a possible transaction involving SS/L.” Id. ¶ 13. Loral and the Prohibited Third Party have each signed nondisclosure agreements and “some non-public financial information concerning SS/L has been exchanged, including five-year financial projections.” Id. II. DISCUSSION “To obtain a preliminary injunction, [plaintiffs] must establish: (1) the likelihood of irreparable injury in the absence of such an injunction, and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly in [plaintiffs’] favor.” TCPIP Holding Co. v. Haar Communications, Inc., 244 F.3d 88, 92 (2d Cir.2001) (quotation marks omitted). Because the irreparable harm analysis turns on plaintiffs’ rights under the Agreements, I shall first consider the likelihood that plaintiffs will succeed on the merits of their claims under the Agreements. A. Likelihood of Success on the Merits The Agreements are to be construed in accordance with New York law. See" }, { "docid": "18474420", "title": "", "text": "concerning Loral’s business plans regarding SS/L, and (b) information concerning SS/L’s ongoing business operations. Before turning to the merits of the proposed injunction, it is first necessary to address the applicable legal standard. Defendants argue that the appropriate standard is that required for a mandatory injunction because plaintiffs are seeking full relief in advance of adjudication on the merits. See Def. Mem. at 17 (citing Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738, 743-44 (2d Cir.2000)). In Brewer, the Court of Appeals held that a moving party “must make a ‘clear’ or ‘substantial’ showing of a likelihood of success in two instances: where (1) the injunction sought is mandatory, i.e., ‘will alter, rather than maintain, the status quo’; or (2) the injunction sought ‘will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits.’ ” Defendants are wrong. Alcatel seeks to preserve the status quo. Even though plaintiffs seek to require defendants to take positive acts, those acts are necessary to preserve the status quo — that is, the status quo prior to October 2000. See Johnson v. Kay, 860 F.2d 529, 541 (2d Cir.1988) (injunction which ordered union to expend funds was prohibitory, not mandatory, because the relief was “what [t]he union should have done earlier — open channels of communication to dissenting views”). Moreover, Alcatel is not seeking all the relief sought in the arbitration, such as all the information it has been deprived of since October 2000. Alcatel seeks an injunction requiring defendants to resume providing it the information to which it is entitled. See 4/11/01 Tr. at 18. Therefore, plaintiffs need only satisfy the legal standard applicable to a prohibitory injunction. a. Information Concerning Loral’s Business Plans Regarding SS/L Plaintiffs contend that “[t]he obligation to provide Alcatel access to information regarding SS/L’s ‘new businesses and new ventures’ in Section 4.2(e)(a) falls on both SS/L and Loral” for two reasons. First, subsection (a) begins “‘Loral will cause SS/L to give each member of the [MLC] ...’ thereby binding both" }, { "docid": "18474408", "title": "", "text": "protest, all access to SS/L information, as well as participation at meetings. See Barkats Deck ¶¶ 15-17; Complaint ¶ 25. Additionally, the SS/L Board has not met since June 1999, even though section 3.1 of the Alliance Agreement requires two SS/L Board meetings per year. See Barkats Deck ¶ 18; Complaint ¶ 26. On February 22, 2001, Loral sent a letter to Alcatel alleging that Alcatel had materially breached the Operational Agreement by teaming up with another company, without SS/L’s written consent, to pursue a bid for a satellite project for which SS/L was contemplating submitting a bid. See Complaint ¶ 28; 2/22/01 Letter from Eric J. Zahler, Loral’s President and Chief Operating Officer, to Jean Claude Husson, President and Chief Executive Officer of Alcatel Space Industries (“2/22/01 Termination Letter”), Ex. 5 to Barkats Deck, at 1. The letter then purported to “terminate” the Operational Agreement “effective immediately,” and to provide Loral’s notice of termination of the Operational Agreement, to take effect twelve months later, pursuant to section 7(v) of the Operational Agreement. 2/22/01 Termination Letter at 1-2; see also Complaint ¶ 28. On February 23 and February 28, 2001, Alcatel responded to Loral’s letter and explained that Alcatel had not breached the Agreements, that the Agreements do not provide for immediate termination, and that any dispute involving the Agreements or their breach must be submitted to arbitration. See Barkats Deck ¶ 25; 2/28/01 Letter from Marc Jany, Alcatel’s Senior Vice President and General Counsel, to Zahler, Ex. 6 to Barkats Deck On March 5, 2001, Loral purported to withdraw without prejudice the immediate termination of the Operational Agreement, but maintained that the one-year notice of termination had been effected. See Complaint ¶ 30; 3/5/01 Letter from Zahler to Jany (“3/5/01 Zahler Letter”), Ex. 7 to Barkats Decl. As the alliance has been winding down, Loral has been pursuing “new strategic business opportunities for it and its subsidiaries.” 3/29/01 Declaration of Eric J. Zahler in Support of Defendants’ Opposition to Plaintiffs’ Motion for an Injunction Pending Arbitration and in Support of Cross-Motion to Compel Arbitration (“Zahler Deck”) ¶ 10. Indeed," }, { "docid": "18474419", "title": "", "text": "security requirements and export control laws] and subject to all other governmental laws, regulations and contractual restrictions, (a) Loral will cause SS/L to give each member of the Management Liaison Committee access to all pertinent information, records, facilities and personnel of SS/L, including but not limited to, SS/L’s regular, monthly management meetings, financial data regarding program and company performance and information regarding the status of SS/L’s material activities in pursuing new businesses and developing new ventures, and (b) SS/L will ensure that each such member is fully and regularly informed on a current basis of the ongoing programs and of the elements of the SS/L operations relevant to the implementation of the Strategic Plan. SS/L will use reasonable efforts to obtain waivers or consents consistent with applicable U.S. laws and regulations un der any agreements with third parties that restrict the Strategic Participants’ access to information otherwise available to them under this Section 4.2(e). Alliance Agreement § 4.2(e). Essentially, Alcatel seeks an injunction requiring defendants to provide it with two categories of information: (a) information concerning Loral’s business plans regarding SS/L, and (b) information concerning SS/L’s ongoing business operations. Before turning to the merits of the proposed injunction, it is first necessary to address the applicable legal standard. Defendants argue that the appropriate standard is that required for a mandatory injunction because plaintiffs are seeking full relief in advance of adjudication on the merits. See Def. Mem. at 17 (citing Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738, 743-44 (2d Cir.2000)). In Brewer, the Court of Appeals held that a moving party “must make a ‘clear’ or ‘substantial’ showing of a likelihood of success in two instances: where (1) the injunction sought is mandatory, i.e., ‘will alter, rather than maintain, the status quo’; or (2) the injunction sought ‘will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits.’ ” Defendants are wrong. Alcatel seeks to preserve the status quo. Even though plaintiffs seek to require defendants to take positive acts, those" }, { "docid": "18474421", "title": "", "text": "acts are necessary to preserve the status quo — that is, the status quo prior to October 2000. See Johnson v. Kay, 860 F.2d 529, 541 (2d Cir.1988) (injunction which ordered union to expend funds was prohibitory, not mandatory, because the relief was “what [t]he union should have done earlier — open channels of communication to dissenting views”). Moreover, Alcatel is not seeking all the relief sought in the arbitration, such as all the information it has been deprived of since October 2000. Alcatel seeks an injunction requiring defendants to resume providing it the information to which it is entitled. See 4/11/01 Tr. at 18. Therefore, plaintiffs need only satisfy the legal standard applicable to a prohibitory injunction. a. Information Concerning Loral’s Business Plans Regarding SS/L Plaintiffs contend that “[t]he obligation to provide Alcatel access to information regarding SS/L’s ‘new businesses and new ventures’ in Section 4.2(e)(a) falls on both SS/L and Loral” for two reasons. First, subsection (a) begins “‘Loral will cause SS/L to give each member of the [MLC] ...’ thereby binding both parent and its subsidiary at the same time.” PI. Mem. at 7. Second, plaintiffs argue that to permit Loral to plan for SS/L’s future without disclosing its plans to Alcatel would prevent “Alcatel’s meaningful representation on the SS/L Board”, and thus violate section 9.2 of the Alliance Agreement which prohibits Loral from taking any action which would adversely affect Alcatel’s rights under the Agreements. Id. at 8, 11. Plaintiffs’ arguments are unavailing. Although section 4.2(e) requires Loral to cause SS/L to provide the MLC members certain information, its plain language limits the information to which MLC members are entitled. Loral must cause SS/L to provide the MLC members information concerning “SS/L’s material activities in pursuing new businesses and developing new ventures,” Alliance Agreement § 4.2(e)(a) (emphasis added), not Loral’s business plans regarding SS/L. Moreover, Alcatel’s contention that it needs to know Loral’s business plans regarding SS/L to exercise meaningfully its rights as a member of the SS/L Board is a red herring. Alcatel’s prior approval rights are no longer in jeopardy because defendants must obtain" }, { "docid": "18474413", "title": "", "text": "SS/L nor any Subsidiary of SS/L shall take any action regarding the matters set forth in Section 3.2(b) below, unless such matters are duly approved by the SS/L Board of Directors[:] (b)(1) any issuance or sale of its capital stock or of securities convertible into, exchangeable for or otherwise granting the right to acquire its capital stock (including options, warrants and other rights) to any person other than Loral or a person who is and remains a Subsidiary of Loral; ... (b)(xii) any merger, consolidation, recapitalization or other reorganization [of SS/L] with or into any other Person. Alliance Agreement §§ 3.2(a), (b)(1) and (b)(xii). Defendants contend that no preliminary injunction is necessary at this time because by Delaware law, a transaction such as a merger or other reorganization of SS/L must be submitted to the SS/L Board for approval, and therefore, Alca-tel’s prior approval rights are not in jeopardy. See Defendants’ Memorandum of Law In Opposition to Plaintiffs’ Motion For an Injunction Pending Arbitration and in Support of Cross-Motion to Compel Arbitration (“Def.Mem.”) at 9; see also 8 DeLCode Ann. tit. 8, §§ 251, 252. Moreover, defendants have agreed to submit to the SS/L Board any agreement to which SS/L is a party — such as a merger, a sale of SS/L’s assets, or some other reorganization — thirty days in advance of an agreement’s consummation. See 4/11/01 Transcript of Oral Arguments (“4/11/01 Tr.”) at 27, 61. Neither Delaware law nor Loral’s representation fully protects Alcatel’s rights. Defendants’ interpretation of Alcatel’s rights ignores the plain meaning of the phrase “any action” in section 3.2(a). Unlike the Delaware Code, which requires Board approval for “an agreement of merger or consolidation”, 8 Del.Code Ann. tit. 8, § 251, section 3.2(a) requires Board approval for “any action regarding” a matter such as a merger, consolidation, or other prohibited transaction. While the phrase “any action” implies the existence of several steps in a process, “an agreement” connotes a single final action. Therefore, section 3.2(a) requires Board approval for any of a series of actions leading up to a final agreement, while the Delaware Code" }, { "docid": "18474436", "title": "", "text": "of the Alliance Agreement; or (ii)' any agreement between the Loral Defendants and a Third Party in which the Loral Defendants commit to use their control over SS/L to achieve the practical effects of a transaction described in clause 7(b)(i) supra. c. “Stock Transaction” means any sale, transfer or other disposition of ownership or control of the stock of SS/L owned by Loral. . Throughout this Opinion, Loral, LSCC and LSC are referred to collectively as \"Loral”. The Operational Agreement and the Alliance Agreement are collectively referred to as the \"Agreements”. . Among other things, the order prohibits defendants from: (i) signing, entering into, or announcing any transaction involving SS/L prior to April 26, 2001; and (ii) disclosing any non-public or confidential SS/L information to any third party prior to April 26, 2001. . Upon the parties' request, the Court sealed the transcript of the April 11 oral argument, as well as many of the documents submitted to the Court. . Loral is a holding company that is the sole owner of LSCC. See id. ¶ 10. LSCC is the sole owner of LSC. See id. ¶ 12. Both LSCC and LSC are Delaware corporations with their principal place of business in New York, New York. See id. ¶¶ 12, 13. . Throughout this Opinion, Alcatel and the European satellite companies are collectively referred to as the \"Strategic Participants”. .The Strategic Participants were paid $374 million in Loral common and preferred stock in exchange for their 49% stock interest in SS/L. See 4/4/01 Reply Declaration of C. Patrick DeWitt in Support of Defendants’ Opposition to Plaintiffs’ Motion for an Injunction Pending Arbitration and In Further Support of Cross-Motion to Compel Arbitration (“Dewitt Reply Deck”) ¶ 3. Loral sought this exchange in order to improve the price of Loral stock by virtue of being an \"operating company” rather than a \"holding company.” 4/3/01 Supplemental Declaration of Gerard Barkats (\"Barkats Supp. Deck”) ¶ 6. . Alcatel explains why transactions and communications with the Prohibited Third Party are closely regulated: In 1996 Loral Corporation sold its defense electronic and systems integration businesses to" }, { "docid": "18474437", "title": "", "text": "¶ 10. LSCC is the sole owner of LSC. See id. ¶ 12. Both LSCC and LSC are Delaware corporations with their principal place of business in New York, New York. See id. ¶¶ 12, 13. . Throughout this Opinion, Alcatel and the European satellite companies are collectively referred to as the \"Strategic Participants”. .The Strategic Participants were paid $374 million in Loral common and preferred stock in exchange for their 49% stock interest in SS/L. See 4/4/01 Reply Declaration of C. Patrick DeWitt in Support of Defendants’ Opposition to Plaintiffs’ Motion for an Injunction Pending Arbitration and In Further Support of Cross-Motion to Compel Arbitration (“Dewitt Reply Deck”) ¶ 3. Loral sought this exchange in order to improve the price of Loral stock by virtue of being an \"operating company” rather than a \"holding company.” 4/3/01 Supplemental Declaration of Gerard Barkats (\"Barkats Supp. Deck”) ¶ 6. . Alcatel explains why transactions and communications with the Prohibited Third Party are closely regulated: In 1996 Loral Corporation sold its defense electronic and systems integration businesses to [the Prohibited Third Party], and the space-related businesses of Loral Corporation were transferred to Defendant Loral Space & Communications Ltd. In connection with its review of this transaction, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, the Federal Trade Commission issued a “Decision and Order” (Docket No. C-3685) restricting [the Prohibited Third Party's] ability to have anything more than a passive, 20 percent interest in Defendant Loral Space & Communications[ ] Ltd., which held Loral Corporation space businesses (including SS/L). In light of that restriction, the parties included provisions in the Alliance Agreement specifically limiting Loral's ability to deal with [the Prohibited Third Party] without Strategic Participant consent. Barkats Decl. ¶ 19. . In July 1998, Alcatel formed Alcatel Space, which transformed Alcatel's satellite operations into a world leader of space systems and into a company \"positioning itself as a prime contractor.\" Dewitt Deck ¶ 7 . With regards to the sixth SS/L contract, Alcatel and SS/L submitted joint bids as prime- and sub-contractors. See Barkats Supp. Deck ¶ 8. . The Operational Agreement specifically" }, { "docid": "18474424", "title": "", "text": "Alcatel is no longer a Strategic Participant. But, Alcatel is a Strategic Participant and the Agreements remain in full force and effect until the arbitral tribunal decides otherwise. Defendants cite section 6.4 of the Alliance Agreement in support of their second argument, that Alcatel is no longer entitled to such information because of the increasingly competitive relationship between it and SS/L. That section provides: Confidentiality. Notwithstanding anything to the contrary contained in this Agreement, any written information regarding the bidding or pricing of work and other competitive matters, or any other proprietary information, relating to SS/L or a Strategic Participant will be disclosed hereunder only to those employees of any party hereto having a need to know such information for purposes of performing their duties under and engaging in activities contemplated by this [Alliance] Agreement and the Operational Agreement, including performance of their duties as members of the Management Liaison Committee ... and such information shall not be used for any other purpose. Alliance Agreement § 6.4. Section 6.4 is a limiting provision which circumscribes the broad right to information granted by section 4.2(e). How ever, defendants’ contention that Alcatel’s MLC member has no need to know the information enumerated in section 6.4 is not supported by the evidence. As described in section 4.2(d), Alcatel’s member on the MLC has two principal responsibilities: (1) to advise and assist SS/L’s President/Chief Operating Officer in developing and carrying out the Strategic Plan; and (2) to facilitate the working relationships between Alcatel and SS/L on all joint issues. See Alliance Agreement § 4.2(d). Alcatel has demonstrated that in the past Barkats has acted in his capacity as an advisor to SS/L’s President. See 4/11/01 Second Supplemental Declaration of Gerard Barkats (“Barkats Second Supp. Deck”) ¶ 7. Therefore, as a member of the MLC, he has the right to information which would assist him in his role as an advisor. Moreover, there is one active project for which Barkats may act as a facilitator. Accordingly, he has “a need to know” competitive information which in any way concerns or effects the joint project between" }, { "docid": "18474429", "title": "", "text": "than $100,000 in cash or equivalent services.” Alcatel’s argument is not persuasive. None of the thirty-two paragraphs in Article V place any restrictions on a transfer by Loral of its SS/L shares to the Prohibited Third Party. The reason Article V exists is precisely because a sale by Loral of its SS/L stock is not included in section 3.2. Moreover, the “new agreements” to which section 3.2(b)(vi) refers are commercial contracts relating to the purchase of goods or services from the Prohibited Third Party. See supra Part II.B.l.a. A transfer to the Prohibited Third Party of Loral’s SS/L stock would not constitute a “new agreement” unless it was part of a larger transaction that included a purchase of goods or services. In conclusion, Alcatel has demonstrated a likelihood of success on its claim that: (1) pursuant to section 3.2 of the Alliance Agreement (a) defendants must receive Board approval prior to entering into any preliminary or final agreement regarding any of the matters listed in section 3.2(b), and (b) defendants may not provide the Prohibited Third Party any non-public or confidential SS/L information without first seeking Board approval; (2) Barkats has a right to receive information concerning SS/ L’s ongoing business operations, pursuant to sections 4.2(e) and 6.4; and (3) Loral may not consummate any sale, transfer or other disposition of its ownership of SS/L stock without respecting Alcatel’s rights under Article V. B. Irreparable Harm “Irreparable harm ‘means injury for which a monetary award cannot be adequate compensation.’ ” Jayaraj v. Scappini, 66 F.3d 36, 39 (2d Cir.1995) (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). The harm must be imminent or certain, not merely speculative. See Tom Doherty Assoc. v. Saban Entm’t, Inc., 60 F.3d 27, 37 (2d Cir.1995). Alcatel has adequately demonstrated that breaches of the Alliance Agreement will cause Alcatel irreparable harm. First, Alcatel has demonstrated that a public announcement of an agreement, such as a restructuring of SS/L, “would have immediate, negative effects on Alcatel’s business [including] ... Alcatel’s chances of obtaining additional contracts on a number" }, { "docid": "18474412", "title": "", "text": "avoid an inconsistency. Cruden, 957 F.2d at 976 (citations omitted). Matters extrinsic to an agreement may be considered only where a contract term is ambiguous. See PaineWebber, 81 F.3d at 1199. However, “[t]he language of a contract is not made ambiguous simply because the parties urge different interpretations. Nor does ambiguity exist where one party’s view strains the contract language beyond its reasonable and ordinary meaning.” Seiden Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992) (quotation marks, citation and alteration omitted). 1. Prior Approval Rights Guaranteed by Section 3.2 a. Prohibited Transactions — Sections 3.2(b)(i) and 3.2(b)(xii) Alcatel seeks to enjoin defendants from engaging in any transaction that violates the provisions of section 3.2 of the Alliance Agreement. Alcatel is primarily concerned that defendants will enter into a preliminary binding agreement or final agreement concerning a matter listed in sections 3.2(b)® or 3.2(b)(xii) without presenting the matter to the SS/L Board, as required by section 3.2(a). Those sections, in relevant part, provide: Section 8.2 Actions by SS/L Board of Directors. (a) [NJeither SS/L nor any Subsidiary of SS/L shall take any action regarding the matters set forth in Section 3.2(b) below, unless such matters are duly approved by the SS/L Board of Directors[:] (b)(1) any issuance or sale of its capital stock or of securities convertible into, exchangeable for or otherwise granting the right to acquire its capital stock (including options, warrants and other rights) to any person other than Loral or a person who is and remains a Subsidiary of Loral; ... (b)(xii) any merger, consolidation, recapitalization or other reorganization [of SS/L] with or into any other Person. Alliance Agreement §§ 3.2(a), (b)(1) and (b)(xii). Defendants contend that no preliminary injunction is necessary at this time because by Delaware law, a transaction such as a merger or other reorganization of SS/L must be submitted to the SS/L Board for approval, and therefore, Alca-tel’s prior approval rights are not in jeopardy. See Defendants’ Memorandum of Law In Opposition to Plaintiffs’ Motion For an Injunction Pending Arbitration and in Support of Cross-Motion to Compel Arbitration (“Def.Mem.”) at 9;" }, { "docid": "18474403", "title": "", "text": "of business in Palo Alto, California, and is an indirect, wholly-owned subsidiary of Loral. See id. In the satellite industry, SS/L is a “prime contractor”, which is the entity responsible for the design, construction, and delivery of the satellite. See 3/29/01 Declaration of C. Patrick Dewitt, Chief Operating Officer of SS/L, in Support of Defendants’ Opposition to Plaintiffs’ Motion for an Injunction Pending Arbitration and in Support of Cross-Motion to Compel Arbitration (“Dewitt Deck”) ¶ 4; see generally Complaint ¶ 14. B. The Agreements On April 22, 1991, Alcatel, Loral Corporation (Loral’s predecessor), and other European satellite companies entered into the Operational Agreement. See id. ¶ 17. The Operational Agreement provided for the marketing and manufacture of satellite systems through and with SS/L. See id.; see also Operational Agreement, Ex. 1 to 3/15/01 Declaration of Gerard Barkats, Al-catel’s Member on the Management Liaison Committee, in Support of Plaintiffs’ Order to Show Cause (“Barkats Deck”), at 1 (stating that the parties entered into the Operational Agreement out of their “desire to advance the business of SS/L ... ”). At the time the parties agreed to promote SS/L through the Operational Agreement, the Strategic Participants purchased 49% of SS/L’s common stock while Loral owned 51% of SS/L’s stock. See Complaint ¶ 18. At the same time, the parties entered into a Stockholders Agreement giving the Strategic Participants important rights with respect to SS/L. See id. In 1997, at Loral’s request, the Strategic Participants exchanged all of their SS/L shares for Loral stock. See id. ¶ 20. As a result, SS/L became a wholly-owned subsidiary of Loral. See Dewitt Deck ¶ 6. As the Strategic Participants were no longer stockholders of SS/L, the Stockholders Agreement was terminated and the parties entered into the Alliance Agreement. See id. The Alliance Agreement continued many of the rights and protections established in the Operational Agreement and the 1991 Stockholders Agreement, including the creation of a Management Liaison Committee (“MLC”), on which each Strategic Participant is a member. See Alliance Agreement, Ex. 3 to Barkats Decl., § 4.2. The Alliance Agreement also gave the Strategic Participants additional" }, { "docid": "18474423", "title": "", "text": "Board approval before entering any preliminary binding agreement regarding the matters enumerated in section 3.2. Plaintiffs need not be informed of Loral’s ideas or negotiations regarding the future of SS/L to exercise their rights as a Board member because those ideas and negotiations may never mature into a preliminary binding agreement. b. Information Concerning SS/L’s Ongoing Business Operations Defendants argue that Alcatel is no longer entitled to information concerning SS/L’s ongoing business operations— such as SS/L’s monthly management meetings and financial data regarding program and company performance—because (1) defendants have provided notice of termination of the Agreements; and (2) the parties’ relationship has become increasingly competitive. See Defendants’ Reply Memorandum of Law in Opposition to Plaintiffs’ Motion for an Injunction Pending Arbitration and in Further Support of Cross-Motion to Compel Arbitration (“Def. Reply Mem.”) at 5. Defendants’ first claim is unavailing. Although Loral has “withdraw[n] its notice of immediate termination of the Agreements without prejudice,” 3/5/01 Zahler Letter, Ex. 7 to Barkats Deck, it continues to act as though the Agreements have been terminated and Alcatel is no longer a Strategic Participant. But, Alcatel is a Strategic Participant and the Agreements remain in full force and effect until the arbitral tribunal decides otherwise. Defendants cite section 6.4 of the Alliance Agreement in support of their second argument, that Alcatel is no longer entitled to such information because of the increasingly competitive relationship between it and SS/L. That section provides: Confidentiality. Notwithstanding anything to the contrary contained in this Agreement, any written information regarding the bidding or pricing of work and other competitive matters, or any other proprietary information, relating to SS/L or a Strategic Participant will be disclosed hereunder only to those employees of any party hereto having a need to know such information for purposes of performing their duties under and engaging in activities contemplated by this [Alliance] Agreement and the Operational Agreement, including performance of their duties as members of the Management Liaison Committee ... and such information shall not be used for any other purpose. Alliance Agreement § 6.4. Section 6.4 is a limiting provision which circumscribes" }, { "docid": "19899033", "title": "", "text": "See IEII I, 407 F.Supp.2d at 490 & n. 30, 497. . Plaintiffs surmise that the belated submission of the Dantas declaration is intended not only to aid the present motion, but to bolster the record on defendants’ appeal of the April 20 Injunction. Given the declaration’s detailed focus on the history of the Umbrella Agreement and its insistence that Opportunity's control over the Brasil Telecom holding companies \"was not (indeed could not be) dependent upon its relationship with the CVC Fund,” that conclusion appears to be warranted. . Rezulin, 224 F.R.D. at 350 (internal citations omitted). . See Corrected Dantas Decl. [docket item 352] ¶¶2-11, 14-19, 26-31 and corresponding exhibits. Defendants’ opposition brief cites only to paragraphs 10-11, 28-31, and Exhibit C of the Dantas declaration. Of these, only Exhibit C, which is identified in paragraph 13, is properly in the record. See Def. Mem. [docket item 342] at 8-9, 17. . IEII II, 427 F.Supp.2d at 497-98 (internal citations omitted). . See, e.g., Jolly v. Coughlin, 76 F.3d 468, 473-74 (2d Cir.1996). . See, e.g., Johnson v. Kay, 860 F.2d 529, 541 (2d Cir.1988). . Defendants concede that plaintiffs have been in control of all of the Portfolio Companies since September 2005. See, e.g., Tr., Apr. 26, 2006 at 4:7-17. . See, e.g., Alcatel Space, S.A. v. Loral Space & Comm. Ltd., 154 F.Supp.2d 570, 580 (S.D.N.Y.2001) (“Even though plaintiffs seek to require defendants to take positive acts, those acts are necessary to preserve the status quo\"). . See, e.g., United States v. Davis, 767 F.2d 1025, 1038 (2d Cir.1985). . See China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35 (2d Cir.1987). . Paramedics Electromedicina Comercial v. GE Med. Sys. Info Tech., Inc., 369 F.3d 645, 652 (2d Cir.2004). . 837 F.2d at 36. . See id. . See, e.g., Paramedics Electromedicina, 369 F.3d at 652; Suchodolski Assoc., Inc. v. Cardell Fin. Corp., No. 03 Civ. 4148 WHP, 2006 WL 10886, *2 (S.D.N.Y. Jan.3, 2006); SG Avipro Fin. Ltd v. Cameroon Airlines, No. 05 Civ. 655(LTS), 2005 WL 1353955, *2 (S.D.N.Y. Jun.8, 2005)." }, { "docid": "18474407", "title": "", "text": "Dewitt Decl. ¶ 7. Of the approximately 36 commercial geosynchronous communication satellite contract opportunities in the world market last year, Alcatel was the successful bidder for ten of these projects while SS/L was the successful bidder on six. See id. ¶ 8. Alcatel and SS/L, however, attempted to minimize their direct competition. For example, SS/L did not submit a bid for any of the ten satellite contracts won by Alca-tel, nor did Alcatel submit a bid for five of the six satellite projects won by SS/L prior to October 2000. See Barkats Supp. Deck ¶ 8. Nevertheless, the number of joint projects between Alcatel and SS/L has declined over the past several years. See Dewitt Deck ¶ 9. Currently, the companies are cooperating on only one active satellite program entered into in 1997. See id. In response to these changing conditions, for the past fifteen to eighteen months, Loral has removed an increasing amount of competitively-sensitive material from the packets Barkats received. See id. ¶ 10. Since October 2000, SS/L has denied Barkats, over his protest, all access to SS/L information, as well as participation at meetings. See Barkats Deck ¶¶ 15-17; Complaint ¶ 25. Additionally, the SS/L Board has not met since June 1999, even though section 3.1 of the Alliance Agreement requires two SS/L Board meetings per year. See Barkats Deck ¶ 18; Complaint ¶ 26. On February 22, 2001, Loral sent a letter to Alcatel alleging that Alcatel had materially breached the Operational Agreement by teaming up with another company, without SS/L’s written consent, to pursue a bid for a satellite project for which SS/L was contemplating submitting a bid. See Complaint ¶ 28; 2/22/01 Letter from Eric J. Zahler, Loral’s President and Chief Operating Officer, to Jean Claude Husson, President and Chief Executive Officer of Alcatel Space Industries (“2/22/01 Termination Letter”), Ex. 5 to Barkats Deck, at 1. The letter then purported to “terminate” the Operational Agreement “effective immediately,” and to provide Loral’s notice of termination of the Operational Agreement, to take effect twelve months later, pursuant to section 7(v) of the Operational Agreement. 2/22/01 Termination" }, { "docid": "18474422", "title": "", "text": "parent and its subsidiary at the same time.” PI. Mem. at 7. Second, plaintiffs argue that to permit Loral to plan for SS/L’s future without disclosing its plans to Alcatel would prevent “Alcatel’s meaningful representation on the SS/L Board”, and thus violate section 9.2 of the Alliance Agreement which prohibits Loral from taking any action which would adversely affect Alcatel’s rights under the Agreements. Id. at 8, 11. Plaintiffs’ arguments are unavailing. Although section 4.2(e) requires Loral to cause SS/L to provide the MLC members certain information, its plain language limits the information to which MLC members are entitled. Loral must cause SS/L to provide the MLC members information concerning “SS/L’s material activities in pursuing new businesses and developing new ventures,” Alliance Agreement § 4.2(e)(a) (emphasis added), not Loral’s business plans regarding SS/L. Moreover, Alcatel’s contention that it needs to know Loral’s business plans regarding SS/L to exercise meaningfully its rights as a member of the SS/L Board is a red herring. Alcatel’s prior approval rights are no longer in jeopardy because defendants must obtain Board approval before entering any preliminary binding agreement regarding the matters enumerated in section 3.2. Plaintiffs need not be informed of Loral’s ideas or negotiations regarding the future of SS/L to exercise their rights as a Board member because those ideas and negotiations may never mature into a preliminary binding agreement. b. Information Concerning SS/L’s Ongoing Business Operations Defendants argue that Alcatel is no longer entitled to information concerning SS/L’s ongoing business operations— such as SS/L’s monthly management meetings and financial data regarding program and company performance—because (1) defendants have provided notice of termination of the Agreements; and (2) the parties’ relationship has become increasingly competitive. See Defendants’ Reply Memorandum of Law in Opposition to Plaintiffs’ Motion for an Injunction Pending Arbitration and in Further Support of Cross-Motion to Compel Arbitration (“Def. Reply Mem.”) at 5. Defendants’ first claim is unavailing. Although Loral has “withdraw[n] its notice of immediate termination of the Agreements without prejudice,” 3/5/01 Zahler Letter, Ex. 7 to Barkats Deck, it continues to act as though the Agreements have been terminated and" }, { "docid": "1670249", "title": "", "text": "relief, it will suffer irreparable harm, and that either (a) it is likely to succeed on the merits, or (b) there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in its favor. Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.2004). To obtain an injunction which alters, rather than maintains, the status quo, a movant must establish a clear or substantial likelihood of success on the merits, as well as irreparable injury. See No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.2001). Where a preliminary injunction grants only part of the relief to which a movant would be entitled on the merits and requires a party “to do what it should have done earlier,” then it is judged under the standard for prohibiting injunctions, and not the heightened standard for mandatory injunctions. Johnson v. Kay, 860 F.2d 529, 541 (2d Cir.1988). See also Brewer v. W. Irondequoit Central Sch. Dist., 212 F.3d 738, 744 (2d Cir.2000) (heightened standard appropriate where injunction will “provide the movant with substantially all the relief sought”); Alcatel Space, S.A. v. Loral Space & Communications Ltd., 154 F.Supp.2d 570, 580 (S.D.N.Y.2001). The heightened standard should only apply “if a preliminary injunction would make it difficult or impossible to render a meaningful remedy to a defendant who prevails on the merits at trial.” Tom Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 35 (2d Cir.1995). The heightened standard for a preliminary injunction does not apply to Roberts’ motion. He seeks only part of the benefits to which he is entitled under the policy, the policy language strongly , supports his argument that Continental should already have been advancing defense costs, and the injunction will not substantially interfere with Continental’s right to obtain a meaningful remedy if it prevails on the merits. If it succeeds on the merits, Continental will have no obligation to pay any judgments against Roberts, and, as the policy itself recognizes, it has the right to recoup the" }, { "docid": "18474438", "title": "", "text": "[the Prohibited Third Party], and the space-related businesses of Loral Corporation were transferred to Defendant Loral Space & Communications Ltd. In connection with its review of this transaction, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, the Federal Trade Commission issued a “Decision and Order” (Docket No. C-3685) restricting [the Prohibited Third Party's] ability to have anything more than a passive, 20 percent interest in Defendant Loral Space & Communications[ ] Ltd., which held Loral Corporation space businesses (including SS/L). In light of that restriction, the parties included provisions in the Alliance Agreement specifically limiting Loral's ability to deal with [the Prohibited Third Party] without Strategic Participant consent. Barkats Decl. ¶ 19. . In July 1998, Alcatel formed Alcatel Space, which transformed Alcatel's satellite operations into a world leader of space systems and into a company \"positioning itself as a prime contractor.\" Dewitt Deck ¶ 7 . With regards to the sixth SS/L contract, Alcatel and SS/L submitted joint bids as prime- and sub-contractors. See Barkats Supp. Deck ¶ 8. . The Operational Agreement specifically provides that it is to be construed in accordance with New York law. See Operational Agreement, Ex. 1 to Barkats Deck, § 8(f). Moreover, the parties have impliedly consented to the application of New York law by exclusively citing to it in their memoranda of law. See Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir.2000) (\"The parties' briefs assume that New York law controls, and such implied consent is sufficient to establish choice of law.\") (quotation marks and alterations omitted); American Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134 (2d Cir.1997) (\"[W]here the parties have agreed to the application of the forum law, their consent concludes the choice of law inquiry.\") . The language of a contract is ambiguous if it is \"capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Seiden As-socs., 959" }, { "docid": "1670250", "title": "", "text": "F.3d 738, 744 (2d Cir.2000) (heightened standard appropriate where injunction will “provide the movant with substantially all the relief sought”); Alcatel Space, S.A. v. Loral Space & Communications Ltd., 154 F.Supp.2d 570, 580 (S.D.N.Y.2001). The heightened standard should only apply “if a preliminary injunction would make it difficult or impossible to render a meaningful remedy to a defendant who prevails on the merits at trial.” Tom Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 35 (2d Cir.1995). The heightened standard for a preliminary injunction does not apply to Roberts’ motion. He seeks only part of the benefits to which he is entitled under the policy, the policy language strongly , supports his argument that Continental should already have been advancing defense costs, and the injunction will not substantially interfere with Continental’s right to obtain a meaningful remedy if it prevails on the merits. If it succeeds on the merits, Continental will have no obligation to pay any judgments against Roberts, and, as the policy itself recognizes, it has the right to recoup the defense costs. Nevertheless, even if the heightened standard applies, Roberts has established a clear and substantial likelihood of showing that he is entitled to defense costs prior to the adjudication of the rescission issues, and irreparable injury if those costs are not paid as they are incurred. A. Success on the Merits The starting point for any analysis of the merits must be the text of the insurance agreement. A court must determine if the parties contemplated and resolved the issue. Their contract is the best evidence of their intentions. Seabury Const. Corp. v. Jeffrey Chain Corp., 289 F.3d 63, 68 (2d Cir.2002). Under New York law, “an insurance contract is interpreted to give effect to the intent of the parties as expressed in the clear language of the contract. The initial interpretation of a contract is a matter of law for the court to decide.” Bowman v. Allstate Ins. Co., 238 F.3d 468, 470 (2d Cir.2001) (citation omitted). To the extent an ambiguity exists and is unresolved by extrinsic evidence, such ambiguity is read" }, { "docid": "18474441", "title": "", "text": "financial condition of SS/L out of SS/L’s ordinary course of business (section 3.2(b)(xiii)(C)); and any agreement permitting SS/L to provide any technology or intellectual property right to the Prohibited Third Party (section 3.2(b) (xviii)). . Even if the applicable legal standard is that required for a mandatory injunction, plaintiffs have made a substantial showing of a likelihood of success regarding their contention that the Alliance Agreement requires defendants to provide Barkats with information concerning SS/L’s ongoing business operations. See infra Part II.A.2.b. . Section 9.2 provides: Each of SS/L and the Loral Entities shall not, and shall not permit any of their respective Subsidiaries or Affiliates to ... take any action which is inconsistent with the rights granted to the Strategic Participants in this Agreement, ... or enter into any other agreement, which would adverse ly affect the rights of a Strategic Participant under this Agreement or the Operational Agreement. Alliance Agreement § 9.2. .Barkats has declared that between 1994 and 1999, he frequently consulted with the then-President of SS/L, Robert Berry, about SS/L strategy and opportunities and would provide SS/L advice and comments regarding SS/L's Strategic Plan. See Barkats Second Supp. Deck ¶ 7. By contrast, Dewitt, SS/L's current Chief Operating Officer, has declared that “Alcatel has never provided general advice to SS/L regarding SS/L's operations, future growth, and development.’’ Dewitt Reply Deck ¶ 4. However, during the period that Barkats claims he “interfaced” with SS/L's President, Dewitt was Chief Financial Officer, which may explain the discrepancy in the testimony offered by Barkats and Dewitt. See Barkats Second Supp. Deck ¶ 7. . Indeed, none of defendants’ declarants allege that such inevitable disclosure has occurred. . This exception, however, does not swallow the rule. Defendants should provide Alcatel the same type and quality of information previously provided pursuant to sections 4.2(e) and 6.4 of the Alliance Agreement, with the same frequency and timeliness as it was provided prior to October 2000. .At oral argument, Loral conceded that Article V may not be used as a subterfuge to avoid Alcatel’s rights. See 4/11/01 Tr. at 29. This conclusion is compelled" } ]

[ { "docid": "1667611", "title": "", "text": "negligence. Whatever duty Eastern may have violated was independent of, and not coextensive with, Lockheed’s duty. Guarnieri v. Kewanee-Ross Corp., 270 F.2d 575, 580 (2d Cir. 1959). The New York courts find passive negligence present when a municipality is the defendant and where it has not committed active negligence. City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937, 10 L.R.A. 393 (1890). Ownership of realty can create this nondelegable duty where the owner is sued by a party injured by a condition of the land created by a contractor hired by a third party, Jackson v. Associated Dry Goods Corp., supra, or where a landlord is held liable for the active negligence of another. Melodee Lane Lingerie Co. v. American Dist. Tel. Co., 18 N.Y.2d 57, 271 N.Y.S.2d 937, 218 N.E.2d 661 (1966). A shipowner who fails to provide a safe place to work for an employee can be found passively negligent. McFall v. Compagnie Maritime Beige, 304 N.Y. 314, 107 N.E.2d 463 (1952). Vicarious liability as in the instance of master and servant may allow indemnification of the master by his servant. Fedden v. Brooklyn Eastern Dist. Terminal, 204 App.Div. 741, 199 N.Y.S. 9 (2d Dept. 1923). The relationship of contractor and subcontractor may impose this nondelegable duty on a contractor by case law. Schwartz v. Merola Bros. Constr. Corp., 290 N.Y. 145, 48 N.E.2d 299 (1943). For a general discussion, see Comment, 28 Fordham L.Rev. 782 (1960); Note, 39 Cornell L.Q. 484 (1954); 25 N.Y.U.L.Rev. 845 (1950). Obviously, none of the above examples apply to this case. The only claim asserted is for the negligence of Lockheed. If plaintiff is successful on trial, it will be predicated on Lockheed’s active negligence and no claim will lie over against Eastern. In fact, a motion by Eastern to dismiss at the close of the case would be granted. Guarnieri v. Kewanee-Ross Corp., 263 F.2d 413, 421 (2d Cir. 1959). Plaintiff has also alleged a claim against Lockheed based on breach of warranty of merchantability. Lockheed contends that breach of warranty constitutes passive negligence. There is a breach of" } ]

[ { "docid": "7803630", "title": "", "text": "of law, but which — because of another’s “primary” fault — should have been discharged by the other. See Restatement of Restitution § 76 (1937). The distinction between primary and secondary liability for this purpose is not based on a mere difference in degrees of fault but rather on a “difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person.” Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 370 (1951). Where the indemnitee’s liability is merely constructive, vicarious or derivative, the burden for the entire loss may be shifted to the indemnitor whose actual fault caused the injury. Danny’s Construction Co. v. Havens Steel Co., 437 F.Supp. 91, 93 (D.Neb.1977); see Restatement of Restitution §§ 94, 95, 96 (1937). The fact patterns that generally give rise to the right of indemnification here claimed include most typically those in which the indemnitee has been held absolutely liable for the wrongful acts of another — as through respondeat superior, the bailor/bailee relationship, or ownership of property where injury resulted from a dangerous condition created by a third person. See Restatement of Restitution §§ 94, 95, 96 (1937). This pattern has arisen in the admiralty context where a shipowner held liable on an unseaworthiness claim is awarded indemnity against a third party whose negligence caused the unsafe condition resulting in injury to a seaman. See, e. g., Simpson Timber Co. v. Parks, 390 F.2d 353 (9th Cir. 1968). Similarly, indemnity may be awarded where the indemnitee was induced to act by an actual misrepresentation of the indemnitor on which he relied or where the indemnitee acted pursuant to directions of the indemnitor which he reasonably believed to be lawful. See, e. g., Radcliffe v. Hilton Inn, 119 Ariz. 306, 580 P.2d 767, 768-69 (1978) (citing Restatement of Restitution § 90 (1937)). Additionally, it may be allowed where the indemnitee has without fault or only through passive negligence failed to discover a dangerous condition in land or buildings or a" }, { "docid": "15252802", "title": "", "text": "of contribution. Where two or more Defendants are negligent or otherwise at fault, and this fault contributes to causing an injury, each of the Defendants becomes responsible for paying a portion of the damages. If you find that indemnity does not apply, but the accident was due partly to the fault of each of two or more of the Defendants, you should indicate these degrees of fault on the special interrogatories on which you shall write your verdict. This circuit has frequently stated the principle that a tortfeasor who is only passively negligent should be indemnified by any actively negligent tortfeasors. However, in applying the rule thus broadly phrased, we have narrowly defined the concept of passive negligence, restricting it to situations in which the so-called “passive” tortfeasor was merely vicariously liable for the torts of another and those in which the liability was imposed on him for some other technical reason unrelated to personal fault. In such instances, the principle applied is basically one of restitution. When each tortfeasor is guilty of acts or omissions that could have proximately caused the injury complained of, we have refused to consider the mere inaction of a party to be passive negligence. In any event, the active-passive rubric is merely a method of liability-shifting: either the tortfeasors bear the loss in equal shares or one bears all of it. In United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), the Supreme Court held that another liability-shifting rule, the admiralty rule of divided damages in collision cases should be replaced by a rule requiring, when possible, the allocation of liability for damages in proportion to the relative fault of each party. This principle of fault allocation is not limited to maritime collision cases. Thus, in Gator Marine Serv. Towing, Inc. v. J. Ray McDermott & Co., 651 F.2d 1096, 1100 (5th Cir. 1981), we held that Ryan indemnity principles should not be extended to “disputes between a vessel and her stevedore over vessel and cargo damage” because such disputes “are best accommodated by a straightforward application" }, { "docid": "7803634", "title": "", "text": "as an intervening or superseding cause in relation to any conduct of the manufacturers for which liability might be found — as well they might — they have not invoked a right to indemnity but an absolute defense to the main claims. See generally Restatement (Second) of Torts §§ 440-442 (1965). This seems the unmistakable thrust of the manufacturers’ arguments on appeal that Newport News as the employer and a sophisticated industrial user of asbestos products owed and breached a nondelegable duty to the employees to provide a safe place to work and therefore had the primary duty to warn them of the dangers of asbestos. This fails to concede— indeed it negates by denying legal causation — the predicate for indemnity that some form of “secondary” liability will have been established against the party seeking indemnity. See Danny’s Construction Co. v. Havens Steel Co., 437 F.Supp. 91, 94 (D.Neb.1977). In summary, given the fact that the only fault charged to the manufacturers on the main claims — hence the only basis upon which their liability to the plaintiffs may be established — is “active” fault, an essential predicate to their right to indemnification is necessarily missing from their attempted statement of claims. If found liable on the main claims, their liability based upon the active fault charged to them in those claims cannot — under applicable principles of tort and restitutionary law applied in admiralty to maritime claims — be considered “secondary” to any liability of Newport News that would arise (were it exposed to any tort liability) from the fault charged to it in the manufacturers’ third-party claim. See Guarnieri v. Kewanee-Ross Corp., 270 F.2d 575, 578-79 (2d Cir. 1959); Viens v. Anthony Co., 282 F.Supp. 983, 987 (D.Vt.1968). The legal and factual theories invoked by the manufacturers might give rise — were they established — to a right to contribution from a joint tortfeasor whose fault concurred as a proximate cause of the plaintiff’s injuries, or. to exoneration from any liability on the basis that the other’s active fault intervened as a superseding cause of those injuries," }, { "docid": "23405873", "title": "", "text": "exists where a joint tort-feasor’s liability arose from negative action or omission, such as failure to inspect, and the other tortfeasor’s active, positive acts of negligence proximately caused the plaintiff’s injuries. Id; Colt Industries Operating Corp. v. Coleman, 246 Ga. 559, 272 S.E.2d 251, 253 (1980); Peacock Const. Co. v. Montgomery Elevator Co., 121 Ga.App. 711, 713, 175 S.E.2d 116, 118 (1970); Central of Georgia Ry. Co. v. Macon Ry. & Light Co., 140 Ga. 309, 78 S.E. 931, 932 (1913). In this case, Equitable’s liability arose from its failure to discover a dangerous condition created or maintained by Otis. The trial court found Otis negligently serviced the elevator only a few days prior to the plaintiff’s accident which proximately caused the plaintiff’s injuries. We believe the act of maintaining is an affirmative duty the negligent performance of which can constitute active negligence. Further, ample law exists to support the proposition that a mere failure to inspect alone constitutes passive negligence where another tortfeasor has committed affirmative acts directly causing the injuries. See Standard Oil Co. v. Mount Bethel United Methodist Church, supra, 196 S.E.2d at 872; Peacock Const. Co., supra, 175 S.E. 2d at 118; Central of Georgia Ry. Co., supra, 78 S.E. at 933; Annotation, Contribution or Indemnity Between Joint Tortfeasors Where Injury to Third Person Results from Violation of a Duty Which One Tortfeasor Owes to Other, 140 A.L.R. 1306 (1942) [hereinafter Contribution and Indemnity ]; see cases cited in Restatement of Restitution, Reporter’s Notes § 95 (1937) (supp. 1965). A more difficult issue is whether Equitable’s duty to maintain the elevator in a safe condition is nondelegable precluding its right to indemnity. The Restatement of the Law of Restitution provides that “[a] person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other.” Restatement of Restitution § 76 (1937) (also quoted in Coleman v. General Motors Corp., 386 F.Supp. 87, 89 (N.D.Ga.1974); Central of Georgia Ry. Co. v. Lester, 118" }, { "docid": "14890444", "title": "", "text": "to a third party for damages resulting from the negligent conduct of an employee. The employer is permitted to recoup his or her loss from the employee under the theory that the nature of the employer-employee relationship is such that a promise by the employee to indemnify the employer should be implied as a matter of law. In order to establish this “quasi-contractual right of indemnification,” the indemnitee must show both that he or she has not acted wrongfully in any degree and that the parties had the type of legal relationship which the law recognizes as giving rise to an implied promise to indemnify. Id. Implied indemnification was expanded beyond this narrow “quasi-eontractual foundation” in order to alleviate some of the harshness of Illinois’ historical rule prohibiting contribution among jointly negligent tortfeasors. Id. at 118, 495 N.E.2d at 499. So called “active-passive” implied indemnity was based on the relative fault of the parties. Under the doctrine, the minimally culpable (passive) tortfeasor was allowed to shift his or her entire loss to the actively culpable tortfeasor. The Allison court reasoned that “[ajctive-passive indemnity, like contributory negligence, perpetuates inequality by its inability to apportion loss and its refusal to grant any relief whatsoever to a party whose conduct is considered active regardless of how much or how little other tortfeasors are at fault.” Id. at 120, 495 N.E.2d at 501 (citation omitted). Accordingly, the court ruled that the Joint Tortfeasors Act preempted active-passive indemnity. The court, however, specifically declined to express an opinion on the continued vitality of implied indemnity in cases where the claims for indemnification are “premised upon an underlying action regarding a defective product or the would-be indemnitees vicarious liability for the conduct of their indemnitor....” Id. at 116, 495 N.E.2d at 497 (citation omitted); see also Allison v. Shell Oil Co.: The Viability of Active-Passive Indemnity After Illinois Contribution Among Joint Tortfeasors Act, 20 John Marshall Law Review 363, 363-64 (1986). 2. Against this complex backdrop, we turn to Chicago Eastern’s claim. In essence, Chicago Eastern is only attempting to recover from Bethlehem the losses incurred by" }, { "docid": "7803633", "title": "", "text": "the fault they charge to Newport News in their third party complaint. To the extent their allegations might be read to charge Newport News with fault concurring with that charged to them by plaintiffs — and so they might be read — they have not invoked a right to be fully indemnified. See Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619 (2d Cir. 1980) (ocean carrier denied indemnity from inland carrier because ocean carrier’s negligence contributed to the injury); Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970) (no indemnity because parties were joint tortfeasors); Avondale Shipyards, Inc. v. The Vessel Thomas E. Cuffe, 434 F.Supp. 920 (E.D.La.1977) (summary judgment against party seeking indemnity granted because its liability neither technical nor vicarious). But cf. Hudson Waterways Corp. v. Coastal Marine Service, Inc., 436 F.Supp. 597 (E.D.Tex.1977) (indemnity allowed because indemnitee’s only negligence was in failing to object to unsafe ramp and request a safer one). Similarly, to the extent the indemnity allegations might be read to charge Newport News’ fault as an intervening or superseding cause in relation to any conduct of the manufacturers for which liability might be found — as well they might — they have not invoked a right to indemnity but an absolute defense to the main claims. See generally Restatement (Second) of Torts §§ 440-442 (1965). This seems the unmistakable thrust of the manufacturers’ arguments on appeal that Newport News as the employer and a sophisticated industrial user of asbestos products owed and breached a nondelegable duty to the employees to provide a safe place to work and therefore had the primary duty to warn them of the dangers of asbestos. This fails to concede— indeed it negates by denying legal causation — the predicate for indemnity that some form of “secondary” liability will have been established against the party seeking indemnity. See Danny’s Construction Co. v. Havens Steel Co., 437 F.Supp. 91, 94 (D.Neb.1977). In summary, given the fact that the only fault charged to the manufacturers on the main claims — hence the only basis upon which their" }, { "docid": "2660373", "title": "", "text": "against the United States, seeking indemnification of the $147,228.33. Some of the company’s claims were time-barred, and the district court denied relief as to the rest on the ground that it would be inequitable to shift the entire burden of loss to the United States. Like Aviation Unlimited and Miller, the United States was merely a vicariously liable passive tortfeasor; its conduct as an employer of negligent agents was no more blameworthy than that of Aviation Unlimited and Miller. Therefore, the court held, California law barred total indemnification. Using an alternative analysis, the court also held that DuVal’s active wrongdoing, which was imputable to his employers, precluded loss shifting to a third party. The district judge correctly applied California law. For the reasons set forth in the opinion of the district court, National Indemnity Co. v. United States, supra, 444 F.Supp. at 1360-61, we hold that National Indemnity, which stood in the shoes of its insureds, was not entitled to complete indemnification. National Indemnity argues, however, that it should receive partial indemnification under the loss splitting doctrine announced in American Motorcycle Ass’n v. Superior Court, supra. Prior to that decision, only one type of indemnification was available: complete loss shifting from one tortfeasor to another. Contribution was the sole means whereby the burden of paying the plaintiff’s damages could be divided between tortfeasors. But contribution was available only between joint judgment debtors. Thus, unless the plaintiff chose to sue two or more concurrent tortfeasors in the same action, there was no way to split the damages. American Motorcycle added the new doctrine of partial indemnity to the existing doctrines of contribution and “all or nothing” indemnity. Under the new rule, a defendant who, because of joint and several liability, has to pay more than his pro rata share of the total damages can obtain reimbursement of the excess amount from his fellow tortfeasors, provided they have not already settled with the plaintiff. DuVal was 25 percent at fault; consequently the flight school’s aliquot portion of the overall damages was 25 percent. Through advantageous pretrial settlements with the Rudelsons and others," }, { "docid": "22038380", "title": "", "text": "non-contractual indemnity and contribution among persons jointly liable in tort to a third party are not susceptible of definite and precise articulation. The starting point is the general rule prevailing in the majority of American jurisdictions, said to derive from Merryweather v. Nixon, 8 Term. Rep. (Kings Bench 1799), that courts will refuse contribution or indemnity between concurrently negligent tortfeasors. In order to effect equity and justice, in certain circumstances the rule has been relaxed to permit exceptions, but the cases relaxing the rule cannot be entirely harmonized or reconciled. A distinction exists between contribution and indemnity: in the former the parties liable for the tort are said to be in pari delicto and the damages are equally divided; in the latter the parties are not in pari delicto and the entire burden is placed upon one of them. Contribution is a minority rule and exists usually by virtue of statutes rather than case law. On the other hand, “[w]ith respect to indemnity in favor of a person who has been compelled to pay for another’s wrong, the general rule against indemnity is more thoroughly circumscribed with exceptions than is the ease with contribution.” The doctrinal basis for non-contractual indemnity among tort-feasors is unjust enrichment. The right is “restitutional in nature, and is based on inherent injustice.” There is general agreement that indemnity is permitted where the indemnitee has only an imputed or vicarious liability because of a special relationship with the actual wrongdoer but is not personally at fault; where the indemnitee has incurred liability by performing at the direction of the indemnitor an act not manifestly wrong ; where the indemnitor has the duty to maintain safe premises, defects in which the indemnitee has failed to correct or discover ; or where the indemnitor is a supplier of goods. There are, however, numerous cases permitting indemnity under circumstances which do not fit neatly into the above categories These cases frequently characterize the negligence of the indemnitor as “active,” “primary,” or “positive” and the negligence of the indemnitee as “passive,” “secondary,” or “negative.” Such characterizations have been criticized as" }, { "docid": "23007052", "title": "", "text": "forced the courts to find a way to do justice within the law so that one guilty of an active or affirmative act of negligence will not escape liability, while another whose fault was only technical or passive assumes complete liability. It has been said that the right of indemnity depends on the principle that everyone is responsible for the consequences of his own wrong, and if others are compelled to pay damages that ought to have been paid by the wrongdoer, they may recover from him. In this connection it has been observed that where one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage, the rule denying contribution or indemnity between joint tortfeasors does not apply, the parties not being in pari delicto as to each other, although either may be held liable as to third persons. A right to implied indemnity among tortfea-sors may arise out of a contractual or special relationship between the parties or from equitable considerations. Accordingly, it is generally held that a person who, without fault on his own part, has been compelled to pay dam ages is entitled to recover indemnity where, as between the parties to the indemnity action, the defendant is primarily liable while the plaintiff is only secondarily liable — that is, where the plaintiff is only technically or constructively liable to the injured party, or where his liability was based on a legal or contractual relationship with the defendant. In other words, a joint tortfeasor may recover indemnity where he has only an imputed or vicarious liability for damages caused by the other tortfeasor. “To the same effect are cases holding that one passively negligent may recover indemnity from one actively negligent, * * 42 C.J.S. Indemnity § 21, pp. 596, 597, under the caption “Indemnity from Another’s Wrong,” is to the same effect, as follows: “One compelled to pay damages on account of the negligent or tortious act of another has a right of action against the latter for indemnity. “It is a" }, { "docid": "7803631", "title": "", "text": "another — as through respondeat superior, the bailor/bailee relationship, or ownership of property where injury resulted from a dangerous condition created by a third person. See Restatement of Restitution §§ 94, 95, 96 (1937). This pattern has arisen in the admiralty context where a shipowner held liable on an unseaworthiness claim is awarded indemnity against a third party whose negligence caused the unsafe condition resulting in injury to a seaman. See, e. g., Simpson Timber Co. v. Parks, 390 F.2d 353 (9th Cir. 1968). Similarly, indemnity may be awarded where the indemnitee was induced to act by an actual misrepresentation of the indemnitor on which he relied or where the indemnitee acted pursuant to directions of the indemnitor which he reasonably believed to be lawful. See, e. g., Radcliffe v. Hilton Inn, 119 Ariz. 306, 580 P.2d 767, 768-69 (1978) (citing Restatement of Restitution § 90 (1937)). Additionally, it may be allowed where the indemnitee has without fault or only through passive negligence failed to discover a dangerous condition in land or buildings or a defect in products created or supplied by the indemnitor. See, e. g., Hudson Waterways Corp. v. Coastal Marine Service, Inc., 436 F.Supp. 597 (E.D.Tex.1977). See generally Restatement (Second) of Torts § 886B (1979); Leflar, supra, at 146-159. The manufacturers’ allegations in their claim for indemnity simply do not invoke — except perhaps in conclusory legal terms which may properly be disregarded— any of these theories of indemnification based upon “primary” as opposed to “secondary” fault that have evolved in restitutionary law as applied in admiralty. If the manufacturers are found liable on the main claim it will be because the trier of fact has determined that the tortious conduct charged to them by the plaintiffs has proxi mately caused compensable injuries. Whether in that process they are adjudged to have breached a duty to warn or an implied warranty, or whether they are held strictly liable, they would not then — under any conceivable circumstances — be able to characterize their resulting liability as being based upon technical, passive or secondary fault in relation to" }, { "docid": "1653711", "title": "", "text": "Government’s own passive role. Id. at 1189, fn. 1. I conclude Williams Form’s third-party complaint fairly states a claim for indemnity from the Federal Government, on grounds that are or would be recognized under the law of Alaska. It is possible that a jury may find Williams Form liable to Green-Hoak on the complaint-in-chief only on passive theories of liability, and that a jury might also find Green-Hoak’s damages were proximately caused by the active negligence of the Corps of Engineers. If so, Williams would be entitled to indemnification by the United States. 3. Contribution. In the alternative, Williams Form claims a right of contribution from the Government as a concurrent tortfeasor, should it be found liable to plaintiffs on an active fault theory. The United States may be sued under the FTCA for contribution. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951). A right to contribution among joint or several tortfeasors is expressly provided by the Alaska Uniform Contribution Among Tortfeasors Act, AS 09.16.010(a) which states: “[W]here two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. The Supreme Court of Alaska recently explained: “The statutory right of contribution is expressly limited to the pro-rata share of the common liability and ‘[n]o tortfeasor is compelled to make contribution beyond his own pro-rata share of the entire liability.’ [Citing AS 09.16.010(b)] In determining the tortfeasors’ pro-rata shares, ‘there relative degrees of fault shall not be considered;’ [AS 09.16.020(1)] however, principles of equity applicable to contribution generally shall apply.’ [AS 09.16.020(3)]” Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 430 (Alaska 1979). The theory of contribution differs from indemnity, which posits a duty or duties owing from the third-party defendant to the third-party plaintiff, or defendant. In contrast, contribution requires a duty from the third-party defendant to the original plaintiff. As noted, supra, at § 1, misfeasance" }, { "docid": "4265992", "title": "", "text": "a duty of care. In fairness, Fidelity was required as a matter of law to take some precaution to protect them from the foreseeable and substantial risks posed by Yormark’s misconduct. Accordingly, Devlin’s motion for summary judgment against third-party plaintiff Fidelity on its claim for indemnity will be granted. IV Two additional matters relating to the banks’ claim for contribution, although not raised by Devlin, require consideration. The first is the question whether Devlin’s alleged liability to the Wendels is of the sort which would entitle him to indemnity from the banks if he were held liable for plaintiffs’ loss. If this were the case, the banks would be barred from seeking contribution. See N.J.S.A. 2A:53A-3. The answer to the question is clearly negative, however. The settled rule in New Jersey is that indemnity will be allowed to a joint tortfeasor only if his liability is merely “constructive” or “vicarious.” E. g., Daily v. Somberg, 28 N.J. 372, 385, 146 A.2d 676 (1958); Hut v. Antonio, 95 N.J.Super. 62, 69, 229 A.2d 823 (App.Div.1967); Public Service Elec. & Gas Co. v. Waldrup, 38 N.J.Super. 419, 432, 119 A.2d 172 (App.Div. 1955). “Constructive” or “vicarious” liability is liability which is imputed by law, without regard to actual fault. See, e. g., Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 560-61, 186 A.2d 274 (1962). But liability is not “vicarious” merely because resting upon “passive” rather than “active” negligence. See Public Service Elec. & Gas Co. v. Waldrup, supra, 38 N.J.Super. at 443, 119 A.2d 172. Devlin’s liability is sought to be predicated upon actual fault in failing properly to supervise Yormark, not upon negligence imputed by law. It is immaterial, therefore, that his omissions might be characterized as “passive” wrongs. He would not be entitled to indemnity for the loss caused by his conduct. The second matter requiring consideration is twofold: first, whether the terms of the Joint Tortfeasors Contribution law allowing contribution in regard to a “wrongful act,” N.J.S.A. 2A:53A-3, bar an action for contribution based on a liability arising without fault under N.J.S.A. 12A:3-419(1), and, second, whether the policy" }, { "docid": "17253422", "title": "", "text": "law, indemnity is limited to situations in which the liability of the defendant is alleged to be secondary or passive. The Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) stated: The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. 366 Pa. at 325, 77 A.2d 368. (Emphasis in original). The court then distinguished primary from secondary liability, stating that the latter rests upon imputed or constructive fault. Id. at 328, 77 A.2d 368. Plaintiff’s complaint cannot be construed as alleging passive or secondary negligence by the United States and primary negligence on the part of Ballard. Neither are facts alleged which would establish the requisite contractual or other special relationship between the United States and Ballard. Thus, there is no legally cognizable basis for a claim for indemnity by the United States against third-party defendants. The United States asserts, alternatively, that it is entitled to contribution from Ballard since they are joint tortfeasors, whose combined conduct caused a single injury to plaintiff — his death and the concomitant compromise of his personal injury claim. It is fundamental that a right to contribution in a tort action arises only among joint tortfeasors. Lasprogata v. Qualls, 263 Pa.Super.Ct. 174, 178 n. 2, 397 A.2d 803, 805 n. 2 (1979). A joint tortfeasor was defined by the Pennsylvania Statute applicable at the time of Hoick’s death as “two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against some or all of them.” 12 P.S. § 2082 (1951) (repealed and replaced by 42 Pa.Cons.Stat.Ann. § 8322, effective June 27, 1978). In Lasprogata v." }, { "docid": "17224272", "title": "", "text": "bridle parted as alleged in plaintiff’s complaint, it was solely and proximately caused to do so by the negligence and improper handling of the cementing head by plaintiff and/or other employees of Norton Drilling Company and/or other persons for whose acts Norton Drilling Company is responsible and answerable. “In the event that third-party complainants are held to have incurred any liability to plaintiff, Adam J. Sims, by reason of the facts and matters alleged in his complaint, which is expressly denied, third-party complainants are entitled to indemnity from Norton Drilling Company by virtue of its implied contractual warranty to remove the cementing head in a careful and workmanlike manner, and/or because Norton Drilling Company’s primary, active and moving negligence proximately caused plaintiff’s alleged injuries.” Norton moved to dismiss or for summary judgment on the ground that the third-party complaint failed to state a claim upon which relief could be granted in that it was merely an attempt to enforce contribution between joint tortfeasors, and action not recognized under maritime law in personal injury cases. None of the parties having offered supporting affidavits, the motion to dismiss was granted on the pleadings alone. The appellants pitch their case on two alternative theories. First, they claim that Norton is obliged to indemnify because Norton was “actively” or “primarily” negligent, whereas Halliburton was merely guilty of “passive” or “secondary” negligence. Second, they assert that the obligation to indemnify arose from Norton’s breach of a contractual warranty to perform its services in a careful and workmanlike manner. Appellant’s claim based on the active-passive negligence dichotomy is clearly without merit. For one thing, the pleadings manifest no distinction in the kind or degree of negligence asserted against Halliburton and Norton. Sims, the plaintiff, seeks to hold Halliburton for furnishing defective equipment. Halliburton charges that Norton was negligent in handling this equipment. Both parties, therefore, are charged with active and affirmative negligence. See Peak Drilling Company v. Halliburton Oil Well Cementing Company, 10 Cir., 215 F.2d 368. Furthermore, even if we were to agree with Halliburton that its fault was only passive or secondary, there is" }, { "docid": "1653706", "title": "", "text": "Williams also claims that the Government gratuitously undertook to recommend Wil-Kwik-Set grout to plaintiffs, to redesign the anchor rod and electrical grounding systems, and to inspect the work in progress. Having undertaken these tasks, the Government would owe a duty to Williams, sounding entirely in tort law, to perform them with due care. If negligent, it would be liable under the FTCA. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). Accordingly, I find that defendant’s third-party complaint sufficiently states tort claims within the jurisdiction of this court under the Federal Tort Claims Act. 2. Indemnity. Defendant Williams Form claims a right of indemnity against the Corps of Engineers on the theory it is only vicariously or “passively” at fault, whereas plaintiffs’ damages were in fact caused by the “active” fault of the Government. Although plaintiff’s complaint states claims of “active” fault against Williams Form—for breach of express warranty and negligence—it also states claims of a traditionally “passive” nature—breach of implied warranties of fitness for a particular use and merchantability—which arise solely by operation of law. See, Alaska Statutes (AS) 45.05.096, 45.05.098; 63 Am.Jur.2d Products Liability, § 110, at 115. In contrast, Williams Form’s third-party complaint asserts nothing but active negligence by the Corps of Engineers. The courts have recognized that a right to indemnity may arise in a variety of ways, including by express contract, implied contract or from the relationship of the parties. In addition, the common law of many states recognizes an equitable right to indemnity when a passively negligent tortfeasor is compelled, solely through the operation of law, to pay for damages to a third person which have been primarily caused by the active negligence of another. In such cases, the active tortfeasor will be held to be the indemnifier of the passive tortfeasor. To do otherwise would be manifestly unfair. Prosser, § 51, at 310; 41 Am.Jur.2d, Indemnity, § 20, at 706, 708. The United States may be impleaded for indemnity under the FTCA. Jayson, § 164, at 5-216—5-217. Under the FTCA, Alaska law controls the third-party claim" }, { "docid": "20564674", "title": "", "text": "of the vast growth of negligence law which has markedly changed the characteristics of negligence actions so that legal negligence no longer embodies a concept of misbehavior, and has forced the courts to find a way to do justice within the law so that one guilty of an active or affirmative act of negligence will not escape liability, while another whose fault was only technical or passive assumes complete liability. It has been said that the right of indemnity depends on the principle that everyone is responsible for the consequences of his own wrong, and if others are compelled to pay damages that ought to have been paid by the wrongdoer, they may recover from him. In this connection it has been observed that where one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage, the rule denying contribution or indemnity between joint tortfeasors does not apply, the parties not being in pari delicto as to each other, although either may be held liable as to third persons. A right to implied indemnity among tortfeasors may arise out of a contractual or special relationship between the parties or from equitable considerations. Accordingly, it is generally held that a person who, without fault on his own part, has compelled to pay damages is entitled to recover indemnity where as between the parties to the indemnity action, the defendant is primarily liable while the plaintiff is only secondarily liable — that is, where the plaintiff is only technically or constructively liable to the injured party, or where his liability was based on a legal or contractual relationship with the defendant. In other words, a joint tortfeasor may recover indemnity where he has only an imputed or vicarious liability for damages caused by the other tortfeasor.’ ” On the facts of the case at bar, while the court concludes that C & K is liable for its failure to comply with the requisite federal safety regulations, such failure did not constitute active negligence, and in the well service agreement" }, { "docid": "15252813", "title": "", "text": "technical liability”). . “The basis for indemnity is restitution, and the concept that one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.” Restatement (Second) of Torts § 886B comment c (1977). Accord, 2 G. Palmer, The Law of Restitution § 10.6, at 410-11 (1978). . E.g., Christofferson v. Halliburton Co., 617 F.2d 403 (5th Cir.), on petition for rehearing, 617 F.2d 408 (5th Cir. 1980) (the active-passive indemnity rule does not apply if the party’s negligence contributed to the accident); Wedlock v. Gulf Miss. Marine Corp., 554 F.2d 240, 243 (5th Cir. 1977) (“The passive negligence doctrine has been held inapplicable where the would-be indemnitee is guilty of acts or omissions that could have proximately caused the injury complained of.”); Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge, 424 F.2d 684, 693 (5th Cir.), cert. denied, 400 U.S. 832, 91 S.Ct. 65, 27 L.Ed.2d 64 (1970); Avondale Shipyards, Inc. v. Vessel Thomas E. Cuffe, 434 F.Supp. 920, 928 (E.D.La.1977) (Rubin, J.). . “Prior to 1975, damages in maritime collision cases where both parties were at fault were divided equally or were placed completely on one party in some cases under the 'major/minor’ fault rule.” Gorman, Ryan Indemnity in Maritime Property Damage Cases: What of Proportionate Fault? 8 U.Balt.L.Rev. 42, 56 (1978). . H. Woods, Comparative Fault § 13:11, at 238 (1978), states: In the cases where negligence of one defendant is denominated as active and the other passive, or where the defendants are not in pari delicto, it is submitted that contribution and not indemnity should be the rule. This is particularly true in those comparative negligence jurisdictions where there, is a proportionate assessment of fault among the defendants. . .. Contribution is the remedy and not indemnity where a defendant claim[s] indemnity based on the passive-active negligence concept. Accord, V. Schwartz, Comparative Negligence § 16.9, at 272 (1974) (“In comparative negli gence states that permit contribution, it is likely that this principle [permitting indemnity to a passive joint tortfeasor from an active one] will" }, { "docid": "15252801", "title": "", "text": "very sensitive subject, and that is the inability of the judges of the Fifth Circuit ... to clearly define these active-passive terms and their role in eases like this.” The judge indicated that he would be open to suggestions for improvement, but the attorney for Petty Ray remarked that in “[ejvery other case I’ve ever been in, the Judge says, ‘we don’t want to leave that to the Jury. I’ll handle that.’ ” The instructions ultimately delivered to the jury were: Each Defendant claims that if it was negligent, this negligence was passive, not active. In order for someone’s negligence to be active, it must be characterized by some affirmative act. A person is only passively negligent if he fails to do something he should have done. When two or more Defendants are found to be liable to a Plaintiff, and one Defendant was only passively negligent and the other Defendants were actively negligent, that Defendant who is only passively negligent is entitled to indemnification. If indemnity does not apply, you must consider the question of contribution. Where two or more Defendants are negligent or otherwise at fault, and this fault contributes to causing an injury, each of the Defendants becomes responsible for paying a portion of the damages. If you find that indemnity does not apply, but the accident was due partly to the fault of each of two or more of the Defendants, you should indicate these degrees of fault on the special interrogatories on which you shall write your verdict. This circuit has frequently stated the principle that a tortfeasor who is only passively negligent should be indemnified by any actively negligent tortfeasors. However, in applying the rule thus broadly phrased, we have narrowly defined the concept of passive negligence, restricting it to situations in which the so-called “passive” tortfeasor was merely vicariously liable for the torts of another and those in which the liability was imposed on him for some other technical reason unrelated to personal fault. In such instances, the principle applied is basically one of restitution. When each tortfeasor is guilty of acts or" }, { "docid": "7803629", "title": "", "text": "underlying factual and legal theories as advanced by the manufacturers. Our reasons are as follows. The claims of the plaintiffs against the manufacturers in the main action are based upon theories of negligence, breach of implied warranty and strict liability. By their third-party action for indemnity the manufacturers seek conditionally — if they are held liable — to transfer the ultimate liability to Newport News on the theory that Newport News was actively negligent and thus primarily liable, while they were only passively negligent or otherwise at fault and thus secondarily liable in respect of the injuries allegedly sustained by plaintiffs. This theory of indemnity — that the indemnitor is guilty of active, primary or original fault while the indemnitee is guilty only of passive, secondary or implied fault — is recognized in admiralty. See, e. g., Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Co., 410 F.2d 178 (5th Cir. 1969). It applies a restitutionary principle to the situation where one person discharges a liability that has been imposed on him by operation of law, but which — because of another’s “primary” fault — should have been discharged by the other. See Restatement of Restitution § 76 (1937). The distinction between primary and secondary liability for this purpose is not based on a mere difference in degrees of fault but rather on a “difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person.” Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 370 (1951). Where the indemnitee’s liability is merely constructive, vicarious or derivative, the burden for the entire loss may be shifted to the indemnitor whose actual fault caused the injury. Danny’s Construction Co. v. Havens Steel Co., 437 F.Supp. 91, 93 (D.Neb.1977); see Restatement of Restitution §§ 94, 95, 96 (1937). The fact patterns that generally give rise to the right of indemnification here claimed include most typically those in which the indemnitee has been held absolutely liable for the wrongful acts of" }, { "docid": "19057427", "title": "", "text": "to be guilty only of active as distinguished from passive negligence, impleader is improper as a matter of law, since an actively negligent tortfeasor is not entitled to indemnity.” The allegations that Anthony was not at fault and that its fault if any did not cause the injuries are matters of defense. If Anthony’s conduct, concurring with acts or omissions of the third-party defendants, caused the injuries, plaintiff has the right to elect to pursue them jointly or severally. Town of Sharon v. Anahama Realty Corp., 97 Vt. 336, 123 A. 192 (1924). These third parties may be liable to plaintiff, but the test under Rule 14 is whether they may be liable to Anthony. Since the plaintiff’s original complaint cannot be reasonably interpreted as including an allegation of “passive or secondary” negligence on Anthony’s part, Anthony’s third-party complaint must fail. Wherefore, it is ordered: That the motions of the third-party defendants, Iroquois Manufacturing Co., Inc., New England Telephone and Telegraph Company, Raymond J. Quesnel, Richard A. Monroe and Carleton J. Hanley, to dismiss the third-party complaint be and the same hereby are granted. . 28 U.S.C.A. . From the outset it is important to distinguish between contribution and indemnity. “The right of contribution, where it exists, presupposes a common liability which is shared by the joint tortfeasors on a pro-rata basis. The right of indemnity, on the other hand, because of some special relationship existing between two tortfeasors shifts the entire loss upon the real wrongdoer.” Great American Insurance Co. v. Evans, 269 F.Supp. 151, 154 (1967). . 42 Vt. at 347. . id. . In the following case, the Pennsylvania Supreme Court discussed this exception in terms of primary and secondary liability. Other jurisdictions have spoken in terms of active and passive negligence. Each, however, is referring to the same doctrine since a person actively at fault is primarily liable while a person passively at fault is secondarily liable. . See also Abajian v. Aetna Casualty and Surety Co., 232 F.Supp. 710 (Vt.1964) where Chief Judge Gibson found this doctrine applicable under Vermont law to an imputed liability" } ]

[ { "docid": "22187824", "title": "", "text": "confession of his guilt in connection with the alleged theft of personal property, alleged to be the property of said Lindsley Lumber Co., and in order illegally to coerce and force the said Frank J. Purnell, Jr., to name and accuse other persons as participants in alleged thefts of personal property, alleged to be the property of the said Lindsley Lumber Co., and for the purpose of imposing illegal summary punishment upon the said Frank J. Purnell, Jr.” The trial judge in his charge to the jury summarized Count 2 as meaning that the defendants beat Purnell “for the purpose of forcing him to make a confession and for the purpose of imposing illegal summary punishment upon him.” He further made clear that the defendants were “not here on trial for a violation of any law of the State of Florida for assault” nor “for assault under any laws of the United States.” There cannot be the slightest doubt from the reading of the indictment and charge as a whole that the defendants were charged with and tried for one of the most brutal deprivations of constitutional rights that can be imagined. It therefore strains at technicalities to say that any issue of vagueness of § 20 as construed and applied is present in the case. Our concern is to see that substantial justice is done, not to search the record for possible errors which will defeat the great purpose of Congress in enacting § 20. Affirmed. Mr. Justice Black dissents. The trial judge charged in part on this phase of the case: “The law denies to anyone acting under color of law, statute, ordinance, regulation or custom the right to try a person by ordeal; that is, for the officer himself to inflict such punishment upon the person as he thinks the person should receive. Now in determining whether this requisite of willful intent was present in this case as to these counts, you gentlemen are entitled to consider all the attendant circumstances; the malice, if any, of the defendants toward these men; the weapon used in the assault," } ]

[ { "docid": "22579103", "title": "", "text": "a governmental objective such as punishment or a ‘trial by ordeal’ ” before a conviction under section 242 may be returned. As we understand it, this contention conflates two different ideas that have been discussed in the reported cases in connection with the concept of specific intent, and presents them as separate legal requirements thereof. On the one hand, appellants argue that the court should have included in its instructions “a purpose to abuse governmental authority ... beyond the specific intent” to violate a constitutional right. Appellants claim to discern in each of the Supreme Court’s cases in this area some such particular governmental purpose: in Screws, a purpose to subject another to trial by ordeal rather than by jury; in Williams, a purpose to impose summary punishment; in Guest, a purpose to impede interstate travel; in Anderson, a purpose to interfere with the right to vote. Yet in none of these cases was the “purpose” so characterized anything “beyond” the specific intent necessary for conviction under sections 241 and 242. Rather, in each case, the purpose was the specific intent necessary for conviction. The “purposes” to which appellants point in these cases are merely descriptive of the due process rights alleged to have been infringed in each. For example, in Screws the Court described the specific intent requirement in terms of a purpose to subject another to “trial by ordeal” for the simple reason that the alleged constitutional violation was the “deprivation ... of the trial which due process guarantees....” 325 U.S. at 106, 65 S.Ct. at 1038. Since this ease involves deprivations of the right to be free from unreasonable force during detention and arrest, the district court correctly instructed the jury on the only “purpose” that was relevant to its deliberations: appellants’ alleged purpose to subject others to unreasonable force during detention and arrest. No “additional” purpose could properly have been required. On the other hand, appellants argue that the court should have required the jury to distinguish “between an act done for a purely personal, nongovernmental reason and that act done for an ostensible government reason.”" }, { "docid": "2866855", "title": "", "text": "by the officers themselves. It is based upon the alleged surrender of the prisoners by the officers to a group of persons, disguised in the regalia of the Ku Klux Klan, to be beaten, and who were beaten, by the Klansmen. The court below instructed the jury on the duties of sheriffs under the common law and the law of Georgia. The officers’ defense, that they surrendered the prisoners to the mob because of threats made to them and in the belief that any other course of ac-. tion would result in even more violence and injury, was submitted by the court in its instructions to the jury. The jury were'very carefully and properly charged that, in order, to find the appellants guilty, they had to determine whether the appellants turned' their prisoners over ,to: the robed and hooded persons with a willful intent to deprive the victims of their constitutional rights. They were further charged that the officers were not being tried for false arrest or for breach of official duty, and that they could be found guilty only if it was proven beyond a reasonable doubt that they delivered the prisoners in their charge to the hooded mob with a willful intent that the prisoners would be beaten by the mob. The court’s charge was full, fair, and able; it followed with accuracy the law as laid down by the Supreme Court in Screws v. United States, supra. We find no part of the charge that was unjustly prejudicial to the appellants. The jury rendered a verdict of guilty against only Lynch and Hartline. There is substantial evidence to support the verdict, and from the evidence the jury could properly have found the following: There was an organizational drive being conducted in northeast Georgia by the Ku Klux Klan in 1948. Sheriff Lynch and his deputies attended various meetings of the Klan. At one meeting, some remarks were made about some negroes creating a disturbance on Hooker Hill. Plans were then made for the burning of some crosses. Notices of one or more of these meetings were sent" }, { "docid": "2866858", "title": "", "text": "were made at that time, nor attempted to be made. While several witnesses testified that they were approached by the Sheriff as to becoming members of a posse, none of them ever received any definite instructions, and no posse was formed. After ceremonies at the public meeting in Trenton, the Klansmen proceeded to Signal Mountain for a second cross-burning, and the appellants followed them to that point. Again no arrests were made, no persons in disguise were identified by them, and no license numbers of automobiles were obtained. These facts and circumstances presented a clear picture of complete cooperation between the appellants and the Klans-men, which amply justified the jury in finding that the prisoners were not taken from the appellants by threat or intimidation, but were voluntarily surrendered to the Klansmen to be beaten by them. It was evidently inconceivable to the jury that the officers in this rural community did not at least recognize some of these disguised men and condone their acts. It was clearly a question for the jury whether or not appellants were acting under color of law within the meaning of said Section 242, and whether these officers knew that a person arrested for an offense had the constitutional right to a trial under the law. The jury were warranted in finding from the evidence beyond a reasonable doubt that appellants willfully failed to accord these victims the opportunity for such a trial, and in fact turned them over to this mob to suffer trial by ordeal, with the conscious purpose and willful intent of depriving them of their constitutional right to a legal trial. The appellants were charged with, and tried for, willful and intentional deprivation of the victims’ constitutional rights. The evidence was sufficient to sustain the verdict, and the judgment appealed from should be affirmed. See Williams v. United States, 340 U.S. 849, 71 S.Ct. 77, affirming a conviction under Section 20 of the Criminal Code, now Section 242, Title 18, U.S.C. Affirmed." }, { "docid": "6027787", "title": "", "text": "had two parts. The first assumes that appellants acted in pursuit of legitimate union objectives. The jury thus was instructed that “[I]n the matter in which it has heard evidence there is a labor dispute within the Enmons exception. That organizing the employees of a business so that they may have a union representative is a proper union objective within the En-mons exception. That picketing as herein defined is a legitimate labor activity in support of such goal within the Enmons exception____ If violence and threats honestly occur as a by-product of a legitimate labor activity, in support of a proper union objective, such acts cannot constitute the extortion defined by [the Hobbs Act].” Appellants isolate certain statements in the second part of the charge, which assumed a finding of improper purpose behind the acts of violence, and contend that those statements were erroneous. For example, appellants quote the following statement: “The use of firearms, firing pistols or rifles, in direction [sic] of employees of other employers, not in necessary defense of self or associate fellow pickets to coerce and prevent such employees from working is not a legitimate labor activity within the Enmons exception.” Appellants fail, however, to quote the statement that immediately precedes the above statement, which clearly sets the use of firearms in the context of an attempt “to wrongfully deprive or deny the right to do business and legitimately compete with an-other____” All of appellants’ other claims of error on this issue are similarly flawed. We do agree, however, that the statement “a legitimate act wrongfully performed may become unlawful and outside the protection of the Enmons exception” is somewhat confusing. A “single instruction to a jury may not be judged in artificial isolation,” however, “but must be viewed in the context of the overall charge.” United States v. Parks, 421 U.S. 658, 674 (1975). We hold that, viewed as a whole, the court’s Enmons instruction more than adequately focused the jury’s collective mind on the distinction in Enmons between wrongful ends and wrongful means. III. We have carefully considered all of appellants’ other claims of" }, { "docid": "6221380", "title": "", "text": "McKAY, Circuit Judge. Bobby Ray Golden, a police officer in Nowata, Oklahoma, was convicted by a jury of violating 18 U.S.C. § 242, which makes criminal the willful deprivation of constitutional rights by any person acting under color of law. He was sentenced to serve one year in prison, with all but sixty days suspended, and five years probation. On appeal, Mr. Golden challenges his conviction on the grounds that (1) there was insufficient evidence to sustain a finding of guilt beyond a reasonable doubt; (2) the trial court erroneously admitted hearsay testimony; and (3) the trial court erroneously admitted physical evidence and failed to properly admonish the jury to disregard an allegedly improper demonstration by the prosecutor. I. Sufficiency of the Evidence Appellant alleges that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt on an essential element of a violation of 18 U.S.C. § 242. Appellant was charged in the indictment with willfully striking, beating, and assaulting the victim, and thereby violating his constitutional right not to be deprived of liberty without due process of law. Record, vol. 1, at 6. The Due Process Clause grants a person the “right not to be treated with unreasonable, unnecessary or unprovoked force by those charged by the state with the duty of keeping accused and convicted offenders in custody.” United States v. Stokes, 506 F.2d 771, 776 (5th Cir. 1975); see also United States v. Villarin Gerena, 553 F.2d 723 (1st Cir. 1977). On appeal, Mr. Golden claims that the evidence did not establish that he used excessive and unnecessary force in violation of the victim’s constitutional due process rights. In an appeal challenging the sufficiency of evidence to support a jury verdict of guilty, the Supreme Court has stated that the test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See United States v. Morris," }, { "docid": "22579086", "title": "", "text": "a court of law not a “trial by ordeal.” ... Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him. Screws, 325 U.S. at 106, 65 S.Ct. at 1038. Here, the Court says that the purpose to deprive another of his right to trial by jury is “plain” from the wrongful conduct that in fact causes such a deprivation. Such intentionally wrongful conduct, because it contravenes a right definitely established in law, evidences a reckless disregard for that right; such reckless disregard, in turn, is the legal equivalent of willfulness. The Court’s decisions since Screws are to the same effect. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), involved special police officers who used “brutal methods” to extract confessions from individuals suspected of a series of thefts. Id. at 98, 71 S.Ct. at 578. The Court stated that such acts served to deprive these individuals of “fundamental, basic, and well-established constitutional rights,” namely, the right to trial by jury and the right to refuse to testify against oneself. Id. at 101-02, 71 S.Ct. at 579. The Court had no difficulty concluding that the officers’ conduct evidenced a specific intent to interfere with the suspects’ rights: the officers “acted willfully and purposely; their aim was precisely to deny the protection the Constitution affords.” Id. at 102, 71 S.Ct. at 579. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), reinstated an indictment charging defendants with a conspiracy whose object was to intimidate blacks in the exercise of their right of interstate travel. The Court observed that a conspiracy to rob an interstate traveler does not necessarily violate section 241. For this, the specific intent to interfere with the right in question must be shown. Proof is thus required that “the predominant purpose of the conspiracy is to impede or prevent the exercise of the right to interstate travel, or to oppress a person because of" }, { "docid": "6295125", "title": "", "text": "the specific purpose to deprive Byrd of rights, privileges, and immunities secured to him and protected by the constitutional provision; that in determining whether the requisite of wilful intent was present, the jury were entitled to consider all the attendant circumstances, the malice, if any, of the defendants toward Byrd, the weapons used in their assault, if any were used, the character and duration of the provocation of the assault and the time and manner in which it was carried out; and that all of such facts and circumstances might be taken into consideration for the purpose of determining whether the acts of the defendants were wilful and for the deliberate and wilful purpose of depriving Byrd of the constitutional rights enumerated in the indictment and in the instructions. And the court further instructed the jury that under the charge of conspiracy, the gravamen of the crime was the formation of the agreement to deprive Byrd of his rights guaranteed by the Constitution; and that in order to find the defendants guilty of the crime of conspiracy, the jury must believe that the defendants agreed to wilfully violate by the use of force and violence on the person of Byrd his rights guaranteed to him by the Constitution and laws of the United States. It was held in Screws v. United States, supra, that intent and wilfulness are essential elements of the offense delineated in section 242. And a critical examination ,of the portions of the instructions presently under consideration makes it crystal clear that in giving them the court followed without deviation or departure the path blueprinted in that case. It is inconceivable that the jury could have failed to understand correctly the meaning of the terms or that they were essential ingredients of the offense charged in each count of the indictment. The instructions as a whole are drawn in question on the broad and general ground that they were lenghty, complicated, inconsistent one with another, contradictory one with another, and confusing. No exception was taken to the instructions on these grounds. But where an error in the" }, { "docid": "2916302", "title": "", "text": "State of Texas”. The use of the police siren while in pursuit of Rasberry, the statement to Rasberry, “Didn’t you know that I am the law?”, the action of appellants in placing Rasberry “under arrest” and lodging him in jail, as well as the delivery of the complaints charging him with defective brakes and lights, clearly support and warrant the inference of the jury that appellants acted “under color of law” in committing the offense charged. Furthermore, the evidence conclusively reveals that Ackermann and Koehler were acting in concert in perpetrating the offense. We find no merit in the contention that the trial court erred in refusing to give defendants’ requested instruction on circumstantial evidence. Here, the conviction did not depend solely on circumstantial evidence, and such charge was clearly erroneous. Cf. Bedell v. United States, 8 Cir., 78 F.2d 358; U. S. v. Skidmore, 7 Cir., 123 F.2d 604. We further find no merit in the contention that the trial court committed reversible error in charging the jury that “the intent (of appellants) is presumed and inferred from the result of the action.” The appellants interposed no objection to that portion of the charge now complained of, and the trial court may not now be put in error in this regard. Popham v. United States, 5 Cir., 11 F.2d 966. The record also reveals that after such statement, the trial court continued its charge: “The proof of a general intent to do Rasberry wrong is not sufficient, but a specific intent to deprive him of a Constitutional right is a burden the law casts upon the Government in this case. Neither color of law nor specific intent may be presumed by you gentlemen, but both color of law and specific intent must be proven by the government beyond a reasonable doubt”. See Screws v. U. S., 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. We have carefully examined each and every assignment of error by appellants, and find them all, without exception, wholly without substance or merit. The charge of the trial court, viewed fully and fairly in" }, { "docid": "1667663", "title": "", "text": "in view of our construction of the word “willfully” the jury should have been further instructed that it was not sufficient that petitioners had a generally bad purpose. To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g., the right to be tried by a court rather than by ordeal. 325 U.S. at 107, 65 S.Ct. at 1038. At Stokes’ trial, the court’s instructions to the jury included the following: An act, ladies and gentlemen, is willfully done if it is done voluntarily and purposely with a specific intent to do something the law forbids, that is with bad purpose to disobey or disregard the law. The specific intent required to convict of this crime is the intent to deprive a person of a constitutional right. The court reiterated the specific intent element in summing up its instructions. Since the trial court stated the specific intent requirement in unambiguous and correct terms, Stokes’ argument must boil down to a complaint that the trial court did not specifically instruct that “it was not sufficient that [the defendant] had a generally bad purpose.” Screws, supra at 107, 65 S.Ct. at 1038. We cannot interpret the language from Screws which Stokes relies upon as having been intended by the Supreme Court to mandate a ritualistic charge to be used in instructing juries in § 242 cases. The significance of Screws is that it held that the specific intent to deprive a person of a constitutional right is an essential element of a § 242 offense. The trial court must state the law correctly in its instructions, and it did so in this case. The fact that it did not use the exact words from Screws that Stokes’ counsel requested is not grounds for reversal when the substance of the charge was correct and not subject to misinterpretation by the jury. Bacon v. Kansas City Southern Railway Company, 373 F.2d 515 (5th Cir. 1967). Stokes has alleged numerous other errors in the trial court’s charge, too numerous and too insubstantial for" }, { "docid": "22579104", "title": "", "text": "the purpose was the specific intent necessary for conviction. The “purposes” to which appellants point in these cases are merely descriptive of the due process rights alleged to have been infringed in each. For example, in Screws the Court described the specific intent requirement in terms of a purpose to subject another to “trial by ordeal” for the simple reason that the alleged constitutional violation was the “deprivation ... of the trial which due process guarantees....” 325 U.S. at 106, 65 S.Ct. at 1038. Since this ease involves deprivations of the right to be free from unreasonable force during detention and arrest, the district court correctly instructed the jury on the only “purpose” that was relevant to its deliberations: appellants’ alleged purpose to subject others to unreasonable force during detention and arrest. No “additional” purpose could properly have been required. On the other hand, appellants argue that the court should have required the jury to distinguish “between an act done for a purely personal, nongovernmental reason and that act done for an ostensible government reason.” The court, they argue, in failing to do so transformed appellants’ “personal act[s] of misconduct into ... violation^] of § 242.” But it is clear that appellants do not here identify an aspect of specific intent— they describe, rather, the requirement that acts punishable under section 242 be carried out “under color of law.” This case involves illegal conduct by law enforcement officers during the detention and arrest of criminal suspects, conduct that unquestionably took place under color of law. Even if they were animated by “purely personal reasons,” appellants would not be immunized from criminal liability under section 242. Conduct that is so motivated may nevertheless be conduct “under color of law,” and thus may result in a conviction under the statute. See United States v. Tarpley, 945 F.2d 806, 809 (5th Cir.1991) (affirming conviction of deputy sheriff under § 242 for beating his wife’s former lover: Screws does not mean that an official acting “for purely personal reasons” does not act under color of law), cert. denied, — U.S. -, 112 S.Ct. 1960," }, { "docid": "2866850", "title": "", "text": "indictment carefully and properly alleges the willfulness necessary to constitute a violation of Section 242 of said Title 18. The federal constitutional rights involved under count two of this indictment are embraced in the portion of the Fourteenth Amendment that reads as follows: “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 the equal protection of the laws.” The rights involved in the foregoing portion of the Fourteenth Amendment are these: the rights of persons under state arrest not to be deprived of their personal security (which is embraced within the word “liberty”) except in accord with due process of law, and also tha rights of such persons to equal protection of the laws. “Equal protection of the laws” in turn includes the right to be tried and punished in the same manner as others accused of crime are tried and punished, the right to protection from injury from the officers having them in charge, and the right of protection by the officers from injury sought to be inflicted upon them as prisoners from third persons. Only as to the last named right does this case present any feature that has not already been adjudicated. In Screws v. United States, 325 U.S. 91, 106, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495, the Supreme Court stated: “Likewise, it is plain that basic to the concept of due process of law in a criminal case is a trial — a trial in a court of law, not a ‘trial by ordeal.’ Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 465, 80 L.Ed. 682 * * *. Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which [the Constitution of the United States] guarantees him. * * * ” Thus we see that an officer of the law who, ■having a prisoner in his custody, unlawfully assaults and beats the prisoner, thereby substituting trial by ordeal" }, { "docid": "2916300", "title": "", "text": "driving a motor vehicle without good brakes and without lights. The complaints were not filed with the court because they were not sworn to, and no other charges were ever filed or made, against Rasberry. We are of opinion there is substantial evidence to support the verdict as to the guilt of both appellants. Where, as here, an individual is apprehended by an officer of the law acting under color of his office, and is badly beaten, intimidated and imprisoned without ever being taken before a committing magistrate or a tribunal which would afford him due process of law and preserve his constitutional rights, manifestly he has been deprived of his rights, privileges and immunities within the meaning of the statute. Title 18, U.S.C.A. Section 242; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Crews v. United States, 5 Cir., 160 F.2d 746; Williams v. United States, 341 U.S. 97, 71 S.Ct. 576. Moreover, the jury was warranted under the evidence adduced in finding that appellants acted wilfully, and that they intentionally subjected Rasberry to illegal and summary punishment without due process of law. In this connection, the language of this court in the case of Crews v. United States, 160 F.2d 746, at page 750, is particularly applicable here: “An officer of the law undoubtedly knows that a person arrested by him for an offense has the constitutional right to a trial under the law, and if the jury should believe from the evidence beyond a reasonable doubt that such an officer willfully failed to accord to one arrested by him the opportunity for such a trial but substituted instead his own trial by ordeal, such jury would be justified in finding that such a denial of such constitutional right was consciously and willfully made. One is generally presumed to have intended the normal and reasonable consequences of his acts.” There is abundant evidence to warrant the finding that appellants here acted “under color of the laws and statutes of the" }, { "docid": "2866854", "title": "", "text": "the victims constituted a violation of his common law duty, his dereliction in this respect comes squarely within the provisions of 18 U.S.C.A. § 52.” We realize that, ¡by adjudicating that “equal protection of the laws” relates to the right of protection due the prisoner by the arresting officer against injury by third persons, we are creating a situation where the courts should proceed' with extreme caution and care, because it would be manifestly unfair to law enforcement officers, as well as being clearly erroneous, to rule that such officers are guilty of a violation of Section 242 merely because prisoners are taken from their custody and whipped or otherwise mistreated. That is not the law. We think that it must appear beyond a reasonable doubt that the officer’s dereliction of his duties, whether of omission or commission, sprang from a willful intent to deprive his prisoner or prisoners of any or all of the rights here-inabove mentioned. The indictment in this case is not predicated upon any alleged assault or battery of the prisoners by the officers themselves. It is based upon the alleged surrender of the prisoners by the officers to a group of persons, disguised in the regalia of the Ku Klux Klan, to be beaten, and who were beaten, by the Klansmen. The court below instructed the jury on the duties of sheriffs under the common law and the law of Georgia. The officers’ defense, that they surrendered the prisoners to the mob because of threats made to them and in the belief that any other course of ac-. tion would result in even more violence and injury, was submitted by the court in its instructions to the jury. The jury were'very carefully and properly charged that, in order, to find the appellants guilty, they had to determine whether the appellants turned' their prisoners over ,to: the robed and hooded persons with a willful intent to deprive the victims of their constitutional rights. They were further charged that the officers were not being tried for false arrest or for breach of official duty, and that they" }, { "docid": "7781738", "title": "", "text": "and for the purposes of dissolving the partnerships and the business entities created by those partnerships and for no other purpose, then you must find defendant's [sic] not guilty.” Appellant's Supplemental Appendix, at SA-2 (citations omitted). Defendant’s counsel joined in this and other requested points for charge submitted by his co-counsel (A-888). . Defendant’s co-defendant, Mitchell Inselberg, requested that the district court render the following instruction: “5. In order for you to convict the defendant's [sic] you must find beyond a reasonable doubt that they intended to commit extortion as I have defined that term for you. If you do not find beyond a reasonable doubt that these defendant’s [sic] or any one of them, intended to commit extortion, you must find them or that defendant not guilty.” Appellant’s Supplemental Appendix, p. SA-2. Defendant’s counsel joined in these requested instructions (A-888). . In support of his contention that Hobbs Act extortion is a specific-intent crime, defendant calls this court's attention, inter alia, to the United States Government’s brief in United States v. Dabish, No. 82-1367, a pending criminal case in the Court of Appeals for the Sixth Circuit. In that brief, the Government states \"[t]he Hobbs Act requires proof that the defendant acted with the specific intent to deprive his victim of property____ Where, as here, the indictment charges a specific intent crime, intent is always ‘in issue’ ____’’ Appellant's Supplemental Appendix at SA-30. The Government took this position in an effort to persuade the Court of Appeals that the district court had correctly admitted certain evidence at trial because it was relevant to prove the intent of the defendant, Dabish, when he committed the acts charged in the indictment. . Rule 30 provides in part: \"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Fed.R.Crim.P. 30. Rule 52(b) states: \"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of" }, { "docid": "22538287", "title": "", "text": "Mr. Justice Marshall’s concurring opinion in Furman v. Georgia, supra, 408 U.S. at 316-322, 92 S.Ct. 2726. . We note also that in Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), the Supreme Court had little difficulty in upholding a conviction of a law enforcement officer under 18 U.S.C. § 242, the criminal counterpart of 42 U.S.C. § 1983, finding due process to be violated “where police take matters in their own hands, seize victims, [and] beat and pound them until they confess.” 341 U.S. at 101, 71 S.Ct. at 579. The indictment charged that the victim had been deprived of the right and privilege not to be deprived of liberty without due process of law, the right and privilege to be secure in his person while in the custody of the State of Florida, the right and privilege not to be subjected to punishment without due process of law, the right to be immune, while in the custody of persons acting under color of the laws of the State of Florida, from illegal assault and battery by any person exercising the authority of said State as well as the right to be tried in accordance with due process of law, 341 U.S. at 103, 71 S.Ct. at 580, and the trial judge charged the jury that it could find Williams guilty if he beat the victim “for the purpose of imposing illegal summary punishment upon him” as well as if the beating was “for the purpose of forcing him to make a confession”. 341 U.S. at 104, 71 S.Ct. at 580. See also United States v. Price, 383 U.S. 787, 793, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). . The standard gains added content from other language in the opinion. The acts must do more than “offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically”; they must be such as “to offend even hardened sensibilities,” 342 U.S. at 172, 72 S.Ct. at 209, or constitute force that is “brutal” and “offensive to human dignity.” 342 U.S. at 174, 72 S.Ct." }, { "docid": "2916303", "title": "", "text": "presumed and inferred from the result of the action.” The appellants interposed no objection to that portion of the charge now complained of, and the trial court may not now be put in error in this regard. Popham v. United States, 5 Cir., 11 F.2d 966. The record also reveals that after such statement, the trial court continued its charge: “The proof of a general intent to do Rasberry wrong is not sufficient, but a specific intent to deprive him of a Constitutional right is a burden the law casts upon the Government in this case. Neither color of law nor specific intent may be presumed by you gentlemen, but both color of law and specific intent must be proven by the government beyond a reasonable doubt”. See Screws v. U. S., 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. We have carefully examined each and every assignment of error by appellants, and find them all, without exception, wholly without substance or merit. The charge of the trial court, viewed fully and fairly in its entirety, substantially preserved every right of appellants and every important issue in the case for the consideration of the jury. We find no reversible error in the record, and the judgment is accordingly affirmed. . Section 242 of Title 18, U.S.O.A. provides: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.” . On cross-examination, in reply to a question as to whether or not he was “assisting Mr. Koehler”, appellant Ackermann answered, “Sure, I was assisting Mm.” Ackermann later added, “I understood that I was supposed to work with Mr. Koehler” RUSSELL, Circuit Judge" }, { "docid": "1667662", "title": "", "text": "back to our decision in Lynch, supra, has made it clear that the constitutional right to due process of law includes not only the right to be tried in a court of law for alleged offenses against the state, but also a right not to be treated with unreasonable, unnecessary or unprovoked force by those charged by'the state with the duty of keeping accused and convicted offenders in custody. This aspect of due process has been made specific by court decisions and is thus within the purview of rights protected by the criminal sanctions of 18 U.S.C. § 242. There was no error in the trial court’s charge to the jury on this point. III. Stokes also contends that the trial court erred in instructing the jury on the element of willfulness. Again he relies on Screws, supra, which construed “willfully” as “connoting a purpose to deprive a person of a specific constitutional right.” 325 U.S. at 101, 65 S.Ct. at 1035. Stokes’ request to charge was based on the following language from Screws: But in view of our construction of the word “willfully” the jury should have been further instructed that it was not sufficient that petitioners had a generally bad purpose. To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g., the right to be tried by a court rather than by ordeal. 325 U.S. at 107, 65 S.Ct. at 1038. At Stokes’ trial, the court’s instructions to the jury included the following: An act, ladies and gentlemen, is willfully done if it is done voluntarily and purposely with a specific intent to do something the law forbids, that is with bad purpose to disobey or disregard the law. The specific intent required to convict of this crime is the intent to deprive a person of a constitutional right. The court reiterated the specific intent element in summing up its instructions. Since the trial court stated the specific intent requirement in unambiguous and correct terms, Stokes’ argument must boil down to a complaint that the" }, { "docid": "22715734", "title": "", "text": "alters ballots or without legal justification destroys them would be acting willfully in the sense in which § 20 uses the term. The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees. Likewise, it isl plain that basic to the concept of due process of law in a criminal case is a trial — a trial in a court of law, not a “trial by ordeal.” Brown v. Mississippi, 297 U. S. 278, 285. It could hardly be doubted that they who “under color of any law, statute, ordinance, regulation, or custom” act with that evil motive violate § 20. Those who decide to take the law into their own hands and act as; prosecutor, jury, judge, and executioner plainly act to; deprive a prisoner of the trial which due process of law: guarantees him. And such a purpose need not be ex-, pressed; it may at times be reasonably inferred from all the circumstances attendant on the act. See Tot v. United States, 319 U. S. 463. The difficulty here is that this question of intent was not submitted to the jury with the proper instructions. The court charged that petitioners acted illegally if they applied more force than was necessary to make the arrest effectual or to protect themselves from the prisoner’s al leged assault. But in view of our construction of the word “willfully” the jury should have been further instructed that it was not-sufficient that petitioners had a generally bad purpose. \\,To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e. g. the right-to be tried/ by a court rather than by ordeal.^ And in determining whether that requisite bad purpose was present the jury would be entitled to consider all the attendant circumstances — the" }, { "docid": "22715735", "title": "", "text": "which due process of law: guarantees him. And such a purpose need not be ex-, pressed; it may at times be reasonably inferred from all the circumstances attendant on the act. See Tot v. United States, 319 U. S. 463. The difficulty here is that this question of intent was not submitted to the jury with the proper instructions. The court charged that petitioners acted illegally if they applied more force than was necessary to make the arrest effectual or to protect themselves from the prisoner’s al leged assault. But in view of our construction of the word “willfully” the jury should have been further instructed that it was not-sufficient that petitioners had a generally bad purpose. \\,To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e. g. the right-to be tried/ by a court rather than by ordeal.^ And in determining whether that requisite bad purpose was present the jury would be entitled to consider all the attendant circumstances — the malice of petitioners, the weapons used in the assault, its character and duration, the provocation, if any, and the like. It is true that no exception was taken to the trial court’s charge. Normally we would under those circumstances not take note of the error. See Johnson v. United States, 318 U. S. 189, 200. But there are exceptions to that rule. United States v. Atkinson, 297 U. S. 157, 160; Clyatt v. United States, 197 U. S. 207, 221-222. And where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial. Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the standards of guilt which Congress has prescribed. Ill It is said, however, that petitioners did not act “under color of any law”" }, { "docid": "22579085", "title": "", "text": "is, that one may have “the purpose to deprive [another] of a constitutional right” without knowing that the Constitution guarantees any such right. Yet how can one intend to deprive another of a right if one does not know that right exists? The paradox resolves itself through the Court’s explanation that to “act willfully in the sense in which we use the word [is to] act in open defiance or reckless disregard of a constitutional requirement that has been made specific and definite.” Id. at 105, 65 S.Ct. at 1037 (emphasis supplied). See United States v. Dise, 763 F.2d 586, 592 (3d Cir.) (noting that the “superficially conflicting mandates of Screws are reconciled by the Court’s recognition that willfulness encompasses ‘reckless disregard of a constitutional requirement’”), cert. denied, 474 U.S. 982, 106 S.Ct. 388, 88 L.Ed.2d 341 (1985). The meaning of “reckless disregard,” meanwhile, can be gleaned from the following passage: [I]t is plain that basic to the concept of due process of law in a criminal case is a trial — a trial in a court of law not a “trial by ordeal.” ... Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him. Screws, 325 U.S. at 106, 65 S.Ct. at 1038. Here, the Court says that the purpose to deprive another of his right to trial by jury is “plain” from the wrongful conduct that in fact causes such a deprivation. Such intentionally wrongful conduct, because it contravenes a right definitely established in law, evidences a reckless disregard for that right; such reckless disregard, in turn, is the legal equivalent of willfulness. The Court’s decisions since Screws are to the same effect. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), involved special police officers who used “brutal methods” to extract confessions from individuals suspected of a series of thefts. Id. at 98, 71 S.Ct. at 578. The Court stated that such acts served to deprive these" } ]

[ { "docid": "1151441", "title": "", "text": "use its line of credit to secure payments to SOCAP. Because ECI repudiated the contract, SOCAP never loaded any oil for or delivered any oil to ECI. On March 16, SOCAP notified ECI that it would hold ECI liable for any damages resulting from ECI’s “breach of this agreement.” In re Energy Cooperative, Inc., No. 85-C-1562, Mem.Op. at 2 (N.D.Ill.1986) (hereinafter D.Ct.Op.). On March 20, ECI agreed to pay SOCAP approximately $1.6 million “ ‘as compensation for ECI’s breach.’ ” Id. ECI paid SOCAP the $1.6 million on April 16. On May 15, 1981 (within 90 days from the date ECI paid the $1.6 million to SO-CAP), ECI filed a voluntary petition for reorganization under Chapter 11 of the 1978 Bankruptcy Code. The trustee subsequently sought in the district court to recover as an avoidable preference the $1.6 million ECI paid to SOCAP. The Bankruptcy Code’s avoidable preference provision, 11 U.S.C. § 547(b), allows a bankruptcy trustee to recover certain transfers a debtor made before he filed a petition in bankruptcy. To avoid a transfer of property as a preference in this case, the trustee must show that the transfer (1) was “to or for the benefit of a creditor”; (2) was “for or on account of an antecedent debt”; (3) was “made while the debtor was insolvent”; (4) was made on or within 90 days before the debtor filed his bankruptcy petition; and (5) enabled the creditor to receive more than the creditor would have received if the debtor had not made the transfer. Id. Not all transfers that meet § 547(b)’s criteria are avoidable. Section 547(c) provides six exceptions to the avoidable preference provision. SOCAP raised (among other affirmative defenses) two of these exceptions in the district court: the contemporaneous exchange exception, 11 U.S.C. § 547(c)(1), and the ordinary course of business exception, 11 U.S.C. § 547(c)(2). Section 547(c)(1) provides that the trustee may not avoid a transfer that the debtor and creditor intended to be a contemporaneous exchange for new value given to the debtor and that was, in fact, a substantially contemporaneous exchange. Section 547(c)(2) provides" } ]

[ { "docid": "5469146", "title": "", "text": "the Bankruptcy Code stand squarely in the way of Fuller’s argument. An agreement in settlement of litigation necessarily arises out of a pre-existing dispute between the parties. If that preexisting dispute constitutes a debt for bankruptcy purposes then a payment in settlement of that dispute is on account of an antecedent debt. As the Seventh Circuit recognized in Energy Cooperative, Inc. v. SOCAP International, Ltd. (In re Energy Cooperative, Inc.), 832 F.2d 997, 1001 (7th Cir.1987), “[although the Bankruptcy Code does not, in so many words, define when a debtor ‘incurs’ a debt, the Bankruptcy Code’s definitions of ‘debt’ and ‘claim’ go a long way in answering that question.” Debt is defined as “liability on a claim.” 11 U.S.C. § 101(12). Claim in turn is defined as: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) 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 equita ble remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured[.] 11 U.S.C. § 101(5) (emphasis added). A creditor is an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(9). Claim is the operative term in the definition of both creditor and debt. As has been often repeated, “Congress sought to give claim ‘its broadest possible definition .... ’ ... [such that ‘all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case.’ ” Energy Cooperative, 832 F.2d at 1001 (citations omitted). Nearly 20 years ago, in Roach v. Edge (In re Edge), 60 B.R. 690 (Bankr.M.D.Tenn.1986), this court analyzed when a claim arises for bankruptcy purposes. “ ‘[W]hile federal law controls which claims are cognizable under the Code, the threshold question of when a right to payment arises, absent overriding federal law, ‘is" }, { "docid": "1151458", "title": "", "text": "of ECI’s financial position or to gain an upper hand on ECI’s other creditors. Therefore, according to SOCAP, since ECI incurred its debt to SOCAP less than 45 days before paying SOCAP (either, as we have held, when ECI breached the contract or, alternatively, when ECI and SOCAP agreed on the settlement) and since ECI made its payment according to ordinary business terms (by wire transfer to SOCAP’s bank, a normal mode of payment and one called for in the contract), ECI’s payment to SOCAP meets all of § 547(c)(2)’s conditions. To support its argument, SOCAP submitted affidavits to the district court from Robert L. Oebser, a former ECI employee, and Nicolas Fresneau, a SOCAP employee. Oebser stated in his affidavit that ECI’s payment to SOCAP was “the type a crude oil purchaser like ECI would ordinarily make if, like ECI, it wished to continue as a participant in the international crude oil marketplace.” Fresneau stated in his affidavit that ECI, “a relatively small participant in the international crude oil market” made the payment “to preserve ECI’s credibility with SOCAP so that should ECI seek to purchase crude oil in the future, SOCAP would look favorably upon doing business with ECI.” These affidavits fall far short of establishing that ECI incurred its debt to SOCAP or paid SOCAP in the ordinary course of either ECI’s or SOCAP’s business. Although a transaction need not occur often to be in the ordinary course of business, a creditor asserting § 547(c)(2) must show that the debtor incurred its debt and paid the creditor in ways similar to other transactions. See In re Economy Milling, 37 B.R. 914, 922 (D.S.C.1983) (debt not incurred and payment not made in the ordinary course of business because creditor did not show that he or other creditors had conducted similar transactions with the debtor before); see also In re AOV Industries, Inc., 62 B.R. 968, 975 (Bankr.D.Colo.1986); In re Ewald Bros., Inc., 45 B.R. 52, 58 n. 14 (Bankr.D.Minn.1984). The Oebser and Fresneau affidavits do not establish that ECI normally breached oil purchase contracts and then paid settlements" }, { "docid": "5469156", "title": "", "text": "emphasis in original). The Fifth Circuit then held that this claim was an antecedent debt for purposes of the preference statute: The legislative history of the bankruptcy code explains the relationship be tween debt and claim: “The terms ‘debt’ and ‘claim’ are coextensive: a creditor has a ‘claim’ against the debtor; the debtor owes a ‘debt’ to the creditor.” Moreover, the Supreme Court has held that the meanings of the terms “debt” and “claim” are coextensive. Indeed, we have proclaimed that, based on Supreme Court authority, “there is no distinction between ‘debt’ and ‘claim’ for purposes of the Bankruptcy Code.” In the absence of a compelling reason why this line of authority would not be applicable to the instant case, we conclude that, as the Parks Group had a “claim” for these expenditures prior to the execution of the Agreement, a “debt” of Southmark also existed for these expenditures prior to the execution of the Agreement. Thus, the $3.3 million transfer was on account of an antecedent debt owed by Southmark. Id. (footnotes omitted). Finally, the Fifth Circuit found statutory support, logic and good policy in this outcome: “Although the instant case presents a rare if not unique fact situation, it nevertheless falls within the broad statutory language of the preference statute. This conclusion is not only consistent with the statute and the case law, but also comports with the general observation that a settlement agreement resolves preexisting claims.” Id. at 318. Here, had PRG not paid Fuller, Fuller would be just another general creditor of PRG’s estate. PRG’s payment to Fuller satisfied an antecedent debt and depleted PRG’s estate of $10,567.91 that would have been available for all creditors. C. Contemporaneous Exchange for New Value and Subsequent New Value Fuller next argues that even if the payment was a preference, it is excepted from avoidance by § 547(c)(1) because it was contemporaneous with resolution of the request for injunctive relief and dismissal of the action; or that the payment was followed by new value, as described in 11 U.S.C. § 547(c)(4), in the form of a “blue print” for" }, { "docid": "1151446", "title": "", "text": "ECI paid SOCAP on account of an antecedent debt, we must determine when ECI incurred a debt to SOCAP. Although the Bankruptcy Code does not, in so many words, define when a debtor “incurs” a debt, the Bankruptcy Code’s definitions of “debt” and “claim” go a long way in answering that question. The Bankruptcy Code defines a debt as a “liability on a claim.” 11 U.S.C. § 101(11). The Code defines a claim as a: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) 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, unmatured, disputed, undisputed, secured or unsecured; 11 U.S.C. § 101(4) (emphasis added). On its face, § 101(4) indicates a congressional intent to broadly define claim; § 101(4)’s legislative history supports this reading. In enacting § 101(4), Congress sought to give claim “its broadest possible definition ....” Under this broad definition of claim, “all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case.” By defining a debt as a “liability on a claim,” Congress gave debt the same broad meaning it gave claim. Furthermore, “the concepts of debt and claim are coextensive: a creditor has a ‘claim’ against the debtor; the debtor owes a ‘debt’ to the creditor.” Senate Report at 23, 1978 U.S.Code Cong. & Ad.News at 5809; see also House Report at 310, 1978 U.S.Code Cong. & Ad.News at 6267. In other words, when a creditor has a claim against a debtor — even if the claim is unliquidated, unfixed, or contingent — the debtor has incurred a debt to the creditor. See In re Vasu Fabrics, Inc., 39 B.R. 513, 516-17 (Bankr.S.D.N.Y.1984). The trustee contends that ECI incurred a debt to SOCAP when it contracted to purchase crude oil from SOCAP. This argument has some appeal, given" }, { "docid": "1151450", "title": "", "text": "of the contract and gives rise to a claim). It is irrelevant that SOCAP’s ultimate recovery for ECI’s breach was contingent on SOCAP’s willingness to pursue its remedy for breach and on the future rise or fall of the crude oil market. Whether or not a claim and debt exist does not depend on whether a creditor chooses to pursue its claim. Furthermore, under the Bankruptcy Code’s broad definition, a contingent claim is still a claim; and, as we have seen, when a claim exists, so does a debt. Despite the Bankruptcy Code’s broad definitions of claim and debt, SOCAP maintains that ECI did not incur a debt because SOCAP never delivered crude oil under the contract; therefore, ECI was never legally bound to pay SOCAP. SOCAP’s argument is unpersuasive. None of the cases SO-CAP cites to support its argument involved an anticipatory breach. See, e.g., In re Gold Coast Seed Co., 751 F.2d 1118; In re Emerald Oil Co., 695 F.2d 833 (5th Cir.1983); In re Iowa Premium Service Co., 695 F.2d 1109; Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1982). Thus, these cases do not apply here. SOCAP’s reasoning ignores Congress’ overriding intent in enacting § 547(b): to promote equal distribution among a bankrupt’s creditors. See House Report at 178, 1978 U.S.Code Cong. & Ad. News at 6138; Barash, 658 F.2d at 510. SOCAP does not even bother to argue that ECI’s anticipatory breach did not create a claim (albeit contingent and unliquidated) in SOCAP’s favor. Where a claim exists, so does a debt. Had ECI not paid SOCAP, SOCAP would be just another creditor of ECI’s estate. ECI’s payment to SOCAP merely compromised a debt and depleted ECI’s estate of $1.6 million that would have been available for its other creditors. This was precisely the type of payment that Congress intended § 547 to reach. Even if ECI paid SOCAP on account of an antecedent debt, however, the district court could still have properly granted SO-CAP summary judgment if ECI’s payment fell under either the contemporaneous exchange or ordinary course of business exceptions to the" }, { "docid": "1151451", "title": "", "text": "v. Public Finance Corp., 658 F.2d 504 (7th Cir.1982). Thus, these cases do not apply here. SOCAP’s reasoning ignores Congress’ overriding intent in enacting § 547(b): to promote equal distribution among a bankrupt’s creditors. See House Report at 178, 1978 U.S.Code Cong. & Ad. News at 6138; Barash, 658 F.2d at 510. SOCAP does not even bother to argue that ECI’s anticipatory breach did not create a claim (albeit contingent and unliquidated) in SOCAP’s favor. Where a claim exists, so does a debt. Had ECI not paid SOCAP, SOCAP would be just another creditor of ECI’s estate. ECI’s payment to SOCAP merely compromised a debt and depleted ECI’s estate of $1.6 million that would have been available for its other creditors. This was precisely the type of payment that Congress intended § 547 to reach. Even if ECI paid SOCAP on account of an antecedent debt, however, the district court could still have properly granted SO-CAP summary judgment if ECI’s payment fell under either the contemporaneous exchange or ordinary course of business exceptions to the avoidable preference provision. See 11 U.S.C. § 547(c)(1) & (2). Neither exception, though, applies here. The contemporaneous exchange exception, § 547(c)(1), does not apply because SOCAP did not give new value to ECI. At the time ECI filed its petition, 11 U.S.C. § 547(a)(2) stated: “New value” means money or money’s worth in goods, services, or new credit, or release by a transfer of property pre viously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, but does not include an obligation substituted for an existing obligation. (Emphasis added.) Contrary to SOCAP’s assertion, § 547(a)(2)’s definition of new value is exclusive. See In re Fuel Supply and Terminaling, Inc., 72 B.R. 752, 757-58 (Bankr.S.D.Tex.1987). 11 U.S.C. § 102(3) states that “ ‘includes’ and ‘including’ are not limiting....” Congress, though, did not state that “new value includes Congress stated that “new value means.” Congress knew how to create an open-ended definition, and specifically stated how it would create an open-ended definition. By" }, { "docid": "1151439", "title": "", "text": "MANION, Circuit Judge. The district court granted summary-judgment for defendant, SOCAP International, Ltd., in an adversary proceeding in which Jay A. Steinberg, bankruptcy trustee for the estate of the debtor, Energy Cooperative, Inc. (ECI), sought to recover a $1.6 million payment from ECI to SOCAP as an avoidable preference under 11 U.S.C. § 547(b). The trustee appeals that ruling. Because we find that ECI’s payment to SOCAP was for an antecedent debt, and because the payment does not fall into the exceptions to the avoidable preference provision that SOCAP urges on appeal, we reverse the district court’s grant of summary judgment for SOCAP, and remand for further proceedings. I. The relevant facts are undisputed. ECI owned and operated a petroleum refinery and SOCAP sold crude oil. In January, 1981, ECI agreed to purchase 80,000 tons of oil from SOCAP during each quarter of 1981. The contract required ECI to pay SOCAP by wire transfer within thirty days of the bill of lading date. The contract also required ECI to open an irrevocable letter of credit in SOCAP’s favor at least ten days before the first day the oil was expected to be loaded; SOCAP would draw upon the letter of credit if ECI did not pay for the oil within thirty days. On February 11, 1981, ECI nominated crude oil for SOCAP to deliver during March, 1981. On February 26, SOCAP informed ECI that based on the price formula the parties had agreed to, the oil would cost $39.75 per barrel. On March 3, SO-CAP notified ECI that it would load the oil on March 16 for delivery to ECI. Under the contract, ECI was to open a letter of credit by March 6. ECI never opened the letter of credit. Instead, on March 11,1981, ECI repudiated the contract. ECI ostensibly repudiated the contract because of various market factors and because of its inability to obtain a letter of credit. Both parties agree, however, that ECI had a line of credit available from Continental Illinois Bank, and could have obtained the letter of credit; ECI just did not want to" }, { "docid": "1151443", "title": "", "text": "that the trustee may not avoid a transfer that was: (1) a payment of a debt incurred in the ordinary course of business of the debtor and creditor; (2) made no more than 45 days after the debtor incurred the debt; (3) made in the ordinary course of business of the debtor and creditor; and (4) made according to ordinary business terms. ECI filed a motion for partial summary judgment in the district court, seeking to strike SOCAP’s contemporaneous exchange and ordinary course of business defenses. SOCAP also moved for summary judgment, alleging that as a matter of law ECI’s payment to SOCAP was not for an antecedent debt, and that ECI’s payment fell under either the contemporaneous exchange or the ordinary course of business defenses. The district court granted SO-CAP’s motion for summary judgment, and denied ECI’s motion for partial summary judgment. The district court reasoned that ECI never incurred a debt to SOCAP because SO-CAP never delivered any oil under the contract. Thus, ECI did not pay SOCAP on account of an antecedent debt; rather, the court found that ECI paid SOCAP for present consideration. D.Ct.Op. 6-9. Alternatively, the district court held that even if ECI’s payment was for an antecedent debt, the payment fell under 11 U.S.C. § 547(c)(2), the ordinary course of business exception to the avoidable preference provision. The court found that ECI incurred a debt and made the payment in the ordinary course of its and SOCAP’s business because the payment arose from the oil purchase agreement that ECI and SOCAP made in the ordinary course of their business and because the payment was one that “ ‘a crude oil purchaser like ECI would ordinarily make if, like ECI, it wanted to continue as a participant in the international crude oil marketplace.’ ” Id. at 10 n. 8 (quoting supplemental affidavit of Robert C. Oebser) (emphasis in the district court’s opinion). The district court also found that ECI made the payment according to ordinary business terms (wire transfer to SOCAP’s bank), and that any debt ECI might have incurred (either upon breaching the contract" }, { "docid": "1151445", "title": "", "text": "or making the settlement agreement) was incurred less than 45 days before ECI made the payment. Id. Finally, although the district court’s opinion did not specifically mention the contemporaneous exchange exception, the opinion suggests that the court found ECI’s payment a contemporaneous exchange for new value. The district court stated “that the settlement payment was made for present consideration, not for an antecedent debt,” D.Ct.Op. at 5, and that “the settlement payment was a contemporaneous exchange for release from any future obligations.” Id. at 10 n. 8. Although the opinion does not expressly say so, the district court apparently believed that the release constituted new value under § 547(c)(2). The trustee appeals the district court’s ruling, contending that, as a matter of law, ECI paid SOCAP on account of an antecedent debt. The trustee further contends that, as a matter of law, ECI’s payment fell under neither the contemporaneous exchange nor ordinary course of business exceptions to avoidability. II. We first examine whether ECI paid SO-CAP on account of an antecedent debt. To determine whether ECI paid SOCAP on account of an antecedent debt, we must determine when ECI incurred a debt to SOCAP. Although the Bankruptcy Code does not, in so many words, define when a debtor “incurs” a debt, the Bankruptcy Code’s definitions of “debt” and “claim” go a long way in answering that question. The Bankruptcy Code defines a debt as a “liability on a claim.” 11 U.S.C. § 101(11). The Code defines a claim as a: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) 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, unmatured, disputed, undisputed, secured or unsecured; 11 U.S.C. § 101(4) (emphasis added). On its face, § 101(4) indicates a congressional intent to broadly define claim; § 101(4)’s legislative history supports this reading. In enacting § 101(4), Congress" }, { "docid": "5469145", "title": "", "text": "To prevail in a preference action, the plaintiff must demonstrate by a preponderance of the evidence the existence of each of the elements of § 547(b). See 11 U.S.C. § 547(g); Corzin v. Decker, Vonau, Sybert & Lackey, Co., L.P.A. (In re Simms Constr. Servs. Co.), 311 B.R. 479, 484 (6th Cir. BAP 2004). Fuller asserts there was no debt to the law firm or the ADA plaintiffs until the consent decree was entered by the district court. Citing Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), Fuller contends that under fee shifting statutes, like the ADA, the obligation to pay the prevailing party’s attorney fees and costs does not arise until the consent decree is entered by a court. Fuller concludes that Plaintiff can produce no set of facts to prove that the payment of attorney fees was “to or for the benefit of a creditor,” or “for or on account of an antecedent debt.” Logic and the Bankruptcy Code stand squarely in the way of Fuller’s argument. An agreement in settlement of litigation necessarily arises out of a pre-existing dispute between the parties. If that preexisting dispute constitutes a debt for bankruptcy purposes then a payment in settlement of that dispute is on account of an antecedent debt. As the Seventh Circuit recognized in Energy Cooperative, Inc. v. SOCAP International, Ltd. (In re Energy Cooperative, Inc.), 832 F.2d 997, 1001 (7th Cir.1987), “[although the Bankruptcy Code does not, in so many words, define when a debtor ‘incurs’ a debt, the Bankruptcy Code’s definitions of ‘debt’ and ‘claim’ go a long way in answering that question.” Debt is defined as “liability on a claim.” 11 U.S.C. § 101(12). Claim in turn is defined as: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether" }, { "docid": "1151442", "title": "", "text": "of property as a preference in this case, the trustee must show that the transfer (1) was “to or for the benefit of a creditor”; (2) was “for or on account of an antecedent debt”; (3) was “made while the debtor was insolvent”; (4) was made on or within 90 days before the debtor filed his bankruptcy petition; and (5) enabled the creditor to receive more than the creditor would have received if the debtor had not made the transfer. Id. Not all transfers that meet § 547(b)’s criteria are avoidable. Section 547(c) provides six exceptions to the avoidable preference provision. SOCAP raised (among other affirmative defenses) two of these exceptions in the district court: the contemporaneous exchange exception, 11 U.S.C. § 547(c)(1), and the ordinary course of business exception, 11 U.S.C. § 547(c)(2). Section 547(c)(1) provides that the trustee may not avoid a transfer that the debtor and creditor intended to be a contemporaneous exchange for new value given to the debtor and that was, in fact, a substantially contemporaneous exchange. Section 547(c)(2) provides that the trustee may not avoid a transfer that was: (1) a payment of a debt incurred in the ordinary course of business of the debtor and creditor; (2) made no more than 45 days after the debtor incurred the debt; (3) made in the ordinary course of business of the debtor and creditor; and (4) made according to ordinary business terms. ECI filed a motion for partial summary judgment in the district court, seeking to strike SOCAP’s contemporaneous exchange and ordinary course of business defenses. SOCAP also moved for summary judgment, alleging that as a matter of law ECI’s payment to SOCAP was not for an antecedent debt, and that ECI’s payment fell under either the contemporaneous exchange or the ordinary course of business defenses. The district court granted SO-CAP’s motion for summary judgment, and denied ECI’s motion for partial summary judgment. The district court reasoned that ECI never incurred a debt to SOCAP because SO-CAP never delivered any oil under the contract. Thus, ECI did not pay SOCAP on account of an antecedent" }, { "docid": "1151453", "title": "", "text": "using “means” instead of “includes” in § 547(a)(2), Congress created an exclusive, rather than open-ended, definition for new value. See 1 L. King, Collier on Bankruptcy ¶ 101.00[2], at 101-15 (15th ed. 1987). (“Those [definitions] stating a definition in terms of ‘means’ attempt a precise definition”); see also In re Olson, 66 B.R. 687, 694 (Bankr.D.Minn.1986) (Waiver of future child support payments not new value because the waiver was not new value within § 547(a)(2)’s definition). SOCAP appeals to legislative history to circumvent this straightforward construction of § 547(a)(2). But, even if relevant (given § 102(3)’s clear language), the sparse legislative history does not help SO-CAP. Both the Senate and House Reports state that “new value ... [is] defined in its ordinary sense[], but [is] defined to avoid any confusion or uncertainty surrounding the term[].” Senate Report at 87, 1978 U.S.Code Cong. & Ad.News at 5873; House Report at 372, 1978 U.S.Code Cong. & Ad.News at 6328. An open-ended definition of new value would not help to “avoid confusion or uncertainty.” SOCAP argues that in exchange for its payment, ECI received a release from its contract obligations and continued “credibility and goodwill with SOCAP and in the international crude oil marketplace.” SO-CAP does not (and cannot) argue that this “new value” is “money or money’s worth in goods, services or new credit,” or a transfer of property to ECI that ECI had previously transferred to SOCAP. In fact, SOCAP concedes that ECI did not receive goods, services, or money. We agree with the trustee that the release and goodwill do not fall within § 547(a)(2)’s definition of new value. To hold otherwise would be inconsistent with the contemporaneous exchange exception’s purpose. We refuse to stretch § 547(a)(2)’s language beyond Congress’ clear intent. The contemporaneous exchange exception exists to protect “transfers] that [are] not really on account of an antecedent debt.” House Report at 373, 1978 U.S. Code Cong. & Ad.News at 6329. That exception does not fit here. ECI paid SOCAP $1.6 million to settle a breach of contract claim that arose more than a month before ECI paid SOCAP;" }, { "docid": "1151444", "title": "", "text": "debt; rather, the court found that ECI paid SOCAP for present consideration. D.Ct.Op. 6-9. Alternatively, the district court held that even if ECI’s payment was for an antecedent debt, the payment fell under 11 U.S.C. § 547(c)(2), the ordinary course of business exception to the avoidable preference provision. The court found that ECI incurred a debt and made the payment in the ordinary course of its and SOCAP’s business because the payment arose from the oil purchase agreement that ECI and SOCAP made in the ordinary course of their business and because the payment was one that “ ‘a crude oil purchaser like ECI would ordinarily make if, like ECI, it wanted to continue as a participant in the international crude oil marketplace.’ ” Id. at 10 n. 8 (quoting supplemental affidavit of Robert C. Oebser) (emphasis in the district court’s opinion). The district court also found that ECI made the payment according to ordinary business terms (wire transfer to SOCAP’s bank), and that any debt ECI might have incurred (either upon breaching the contract or making the settlement agreement) was incurred less than 45 days before ECI made the payment. Id. Finally, although the district court’s opinion did not specifically mention the contemporaneous exchange exception, the opinion suggests that the court found ECI’s payment a contemporaneous exchange for new value. The district court stated “that the settlement payment was made for present consideration, not for an antecedent debt,” D.Ct.Op. at 5, and that “the settlement payment was a contemporaneous exchange for release from any future obligations.” Id. at 10 n. 8. Although the opinion does not expressly say so, the district court apparently believed that the release constituted new value under § 547(c)(2). The trustee appeals the district court’s ruling, contending that, as a matter of law, ECI paid SOCAP on account of an antecedent debt. The trustee further contends that, as a matter of law, ECI’s payment fell under neither the contemporaneous exchange nor ordinary course of business exceptions to avoidability. II. We first examine whether ECI paid SO-CAP on account of an antecedent debt. To determine whether" }, { "docid": "1151454", "title": "", "text": "exchange for its payment, ECI received a release from its contract obligations and continued “credibility and goodwill with SOCAP and in the international crude oil marketplace.” SO-CAP does not (and cannot) argue that this “new value” is “money or money’s worth in goods, services or new credit,” or a transfer of property to ECI that ECI had previously transferred to SOCAP. In fact, SOCAP concedes that ECI did not receive goods, services, or money. We agree with the trustee that the release and goodwill do not fall within § 547(a)(2)’s definition of new value. To hold otherwise would be inconsistent with the contemporaneous exchange exception’s purpose. We refuse to stretch § 547(a)(2)’s language beyond Congress’ clear intent. The contemporaneous exchange exception exists to protect “transfers] that [are] not really on account of an antecedent debt.” House Report at 373, 1978 U.S. Code Cong. & Ad.News at 6329. That exception does not fit here. ECI paid SOCAP $1.6 million to settle a breach of contract claim that arose more than a month before ECI paid SOCAP; in other words, ECI paid off an antecedent debt. SOCAP’s release (or the “goodwill”) makes no difference. If a release (and possible “goodwill”) resulting from settling a claim was new value bringing the settlement payment within the contemporaneous exchange exception, creditors would rush to settle for cash at the first hint of the debtor’s financial trouble rather than wait and pursue a claim in bankruptcy. Those creditors who successfully settle will likely receive more than they otherwise would have, leaving less for the creditors who do not successfully settle. This would be inconsistent with Congress’ intent to deter creditors from dismembering the debtor during his slide into bankruptcy and to promote equity among creditors. See House Report at 178-79, 1978 U.S.Code Cong. & Ad.News at 6138, 6139. Congress certainly did not intend the contemporaneous exchange exception to achieve such a result. Furthermore, a payment is not a preference unless the debtor is insolvent and the creditor receives more than he would have otherwise received. See 11 U.S.C. § 547(b)(3) & (5). Therefore, in a preference" }, { "docid": "1151460", "title": "", "text": "without receiving any oil, nor do the affidavits establish that ECI had ever breached an oil purchase contract with and paid a settlement to SOCAP. The affidavits do not even establish that the course of events between ECI and SOCAP are normal in the oil industry. At most, the affidavits show only ECI’s subjective business reasons for breaching the contract: to preserve its goodwill and standing in the oil industry. ECI might have had good business reasons for breaching the contract and paying the settlement. Those reasons, however, offer little solace to ECI’s other unsecured creditors, who are faced with splitting a smaller estate because of the payment. Furthermore, those reasons do not establish that Ed’s actions were within the ordinary course of its or SOCAP’s business. Without more of a showing, we agree with the court in In re Daikin Miami Overseas, Inc., that “payments made pursuant to a settlement agreement, which appear to be the result of an antecedent debt and prior dispute between the parties, are simply not in the ordinary course of business.” 65 B.R. at 398. Thus, SOCAP may not assert the ordinary course of business exception as a defense to avoidability. III. On the undisputed facts in this case, ECI is entitled to judgment on the antecedent debt, contemporaneous exchange, and ordinary course of business issues as a matter of law. Since SOCAP fully argued all these issues in the district court, we reverse the district court's grant of summary judgment for SOCAP and remand to the district court with instructions to enter summary judgment for ECI on the antecedent debt, contemporaneous exchange, and ordinary course of business issues. See generally C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure § 2720, at 28-35 (2d ed. 1983) (appellate court may order district court to enter summary judgment for nonmoving party on an issue if no issue of material fact exists, moving party had an opportunity to meet the issue in the district court, and nonmov-ing party is entitled to judgment as a matter of law). Granting summary judgment for ECI on these" }, { "docid": "1151448", "title": "", "text": "the Code’s broad definition of debt. However, holding that ECI incurred a debt upon making the contract would create a conflict with at least two circuits. See In re Gold Coast Seed Co., 751 F.2d 1118, 1119 (9th Cir.1985) (under forward contract for commodities, buyer incurs debt at the time goods are delivered, not at the time buyer makes the contract); In re Iowa Premium Service Co., Inc., 695 F.2d 1109, 1111-12 (8th Cir.1982) (en banc) (debtor incurs debt for interest on promissory note when interest falls due, not when debtor executes note). See also In re Jolly, 574 F.2d 349, 351 (6th Cir.1978) (holder of an executory contract has no claim until the debtor rejects the contract). We need not decide whether ECI incurred a debt upon contracting with SO-CAP because we agree with the trustee’s alternative argument that ECI incurred a debt to SOCAP when ECI repudiated the contract on March 11. Illinois law, which the parties do not dispute governed the contract, provides that: When either party repudiates [a] contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may (b) resort to any remedy for breach. Ill.Ann.Stat. Ch. 26, para. 2-610 (Smith-Hurd 1963). Among the remedies for breach Illinois law provides is recovery of damages. Id. at para. 2-703(d) & (e). The normal measure of damages when a buyer repudiates a contract to purchase goods “is the difference between the market price at the time and place for tender and the unpaid contract price ... but less expenses saved in consequence of the buyer’s breach.” Id. at para. 2-708(1). Thus, ECI’s repudiation constituted a breach of the contract (and the record shows that SOCAP treated ECI’s repudiation as a breach) and SOCAP had a right to pursue damages (that is, payment) for that breach. When ECI breached the contract with SO-CAP, SOCAP acquired a claim against ECI; therefore, ECI incurred a debt to SOCAP. Cf. In re Jolly, 574 F.2d at 350, 351 (rejecting an executory contract constitutes breach" }, { "docid": "1151457", "title": "", "text": "ordinary course of business of the debtor and the debtor’s transferee.” 4 L. King, Collier on Bankruptcy, ¶ 547.10, at 547-42 (15th ed. 1987). In other words, § 547(c)(2) protects “ordinary trade credit transactions that are kept current.” Barash, 658 F.2d at 511. See also In re Daikin Miami Overseas, Inc., 65 B.R. 396, 398 (S.D.Fla.1986); In re Bourgeois, 58 B.R. 657, 659 (Bankr.W.D.La.1986). ECI’s payment, however, was not part of any recurring, customary trade transactions. It was a one-time payment to settle a breach of contract claim. SOCAP argues that ECI’s debt to SO-CAP arose out of incidents—the breach and settlement—related to the oil purchase contract, an ordinary business transaction for both ECI and SOCAP. SOCAP also argues that ECI’s payment was one a small oil purchaser like ECI would make if it wanted to maintain credibility in the world oil market. Thus, SOCAP contends, ECI incurred its debt to and paid SOCAP in the ordinary course of both SOCAP’s and ECI’s businesses. SOCAP further maintains that it did nothing abnormal to take advantage of ECI’s financial position or to gain an upper hand on ECI’s other creditors. Therefore, according to SOCAP, since ECI incurred its debt to SOCAP less than 45 days before paying SOCAP (either, as we have held, when ECI breached the contract or, alternatively, when ECI and SOCAP agreed on the settlement) and since ECI made its payment according to ordinary business terms (by wire transfer to SOCAP’s bank, a normal mode of payment and one called for in the contract), ECI’s payment to SOCAP meets all of § 547(c)(2)’s conditions. To support its argument, SOCAP submitted affidavits to the district court from Robert L. Oebser, a former ECI employee, and Nicolas Fresneau, a SOCAP employee. Oebser stated in his affidavit that ECI’s payment to SOCAP was “the type a crude oil purchaser like ECI would ordinarily make if, like ECI, it wished to continue as a participant in the international crude oil marketplace.” Fresneau stated in his affidavit that ECI, “a relatively small participant in the international crude oil market” made the payment “to" }, { "docid": "1151449", "title": "", "text": "to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may (b) resort to any remedy for breach. Ill.Ann.Stat. Ch. 26, para. 2-610 (Smith-Hurd 1963). Among the remedies for breach Illinois law provides is recovery of damages. Id. at para. 2-703(d) & (e). The normal measure of damages when a buyer repudiates a contract to purchase goods “is the difference between the market price at the time and place for tender and the unpaid contract price ... but less expenses saved in consequence of the buyer’s breach.” Id. at para. 2-708(1). Thus, ECI’s repudiation constituted a breach of the contract (and the record shows that SOCAP treated ECI’s repudiation as a breach) and SOCAP had a right to pursue damages (that is, payment) for that breach. When ECI breached the contract with SO-CAP, SOCAP acquired a claim against ECI; therefore, ECI incurred a debt to SOCAP. Cf. In re Jolly, 574 F.2d at 350, 351 (rejecting an executory contract constitutes breach of the contract and gives rise to a claim). It is irrelevant that SOCAP’s ultimate recovery for ECI’s breach was contingent on SOCAP’s willingness to pursue its remedy for breach and on the future rise or fall of the crude oil market. Whether or not a claim and debt exist does not depend on whether a creditor chooses to pursue its claim. Furthermore, under the Bankruptcy Code’s broad definition, a contingent claim is still a claim; and, as we have seen, when a claim exists, so does a debt. Despite the Bankruptcy Code’s broad definitions of claim and debt, SOCAP maintains that ECI did not incur a debt because SOCAP never delivered crude oil under the contract; therefore, ECI was never legally bound to pay SOCAP. SOCAP’s argument is unpersuasive. None of the cases SO-CAP cites to support its argument involved an anticipatory breach. See, e.g., In re Gold Coast Seed Co., 751 F.2d 1118; In re Emerald Oil Co., 695 F.2d 833 (5th Cir.1983); In re Iowa Premium Service Co., 695 F.2d 1109; Barash" }, { "docid": "1151459", "title": "", "text": "preserve ECI’s credibility with SOCAP so that should ECI seek to purchase crude oil in the future, SOCAP would look favorably upon doing business with ECI.” These affidavits fall far short of establishing that ECI incurred its debt to SOCAP or paid SOCAP in the ordinary course of either ECI’s or SOCAP’s business. Although a transaction need not occur often to be in the ordinary course of business, a creditor asserting § 547(c)(2) must show that the debtor incurred its debt and paid the creditor in ways similar to other transactions. See In re Economy Milling, 37 B.R. 914, 922 (D.S.C.1983) (debt not incurred and payment not made in the ordinary course of business because creditor did not show that he or other creditors had conducted similar transactions with the debtor before); see also In re AOV Industries, Inc., 62 B.R. 968, 975 (Bankr.D.Colo.1986); In re Ewald Bros., Inc., 45 B.R. 52, 58 n. 14 (Bankr.D.Minn.1984). The Oebser and Fresneau affidavits do not establish that ECI normally breached oil purchase contracts and then paid settlements without receiving any oil, nor do the affidavits establish that ECI had ever breached an oil purchase contract with and paid a settlement to SOCAP. The affidavits do not even establish that the course of events between ECI and SOCAP are normal in the oil industry. At most, the affidavits show only ECI’s subjective business reasons for breaching the contract: to preserve its goodwill and standing in the oil industry. ECI might have had good business reasons for breaching the contract and paying the settlement. Those reasons, however, offer little solace to ECI’s other unsecured creditors, who are faced with splitting a smaller estate because of the payment. Furthermore, those reasons do not establish that Ed’s actions were within the ordinary course of its or SOCAP’s business. Without more of a showing, we agree with the court in In re Daikin Miami Overseas, Inc., that “payments made pursuant to a settlement agreement, which appear to be the result of an antecedent debt and prior dispute between the parties, are simply not in the ordinary course" }, { "docid": "1151456", "title": "", "text": "situation a release is likely to be worthless to other creditors. The release does not free up any assets for other creditors because the debtor could not have paid the preferred claim anyway. All the payment for the settlement and release does is deplete the debtor’s estate at the other creditors’ expense, frustrating Congress’ intent to promote fair distribution among creditors. Because the release and “goodwill” are not new value, the contemporaneous exchange exception does not apply to ECI’s payment. ECI’s payment to SOCAP also does not fall under the § 547(c)(2) ordinary course of business exception. Congress enacted § 547(c)(2) “to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or creditors during the debtor’s slide into bankruptcy.” House Report at 373, 1978 U.S.Code Cong. & Ad. News at 6329; see also Senate Report at 88, 1978 U.S.Code Cong. & Ad.News at 5874. Section 547(c)(2) protects “recurring, customary credit transactions that are incurred and paid in the ordinary course of business of the debtor and the debtor’s transferee.” 4 L. King, Collier on Bankruptcy, ¶ 547.10, at 547-42 (15th ed. 1987). In other words, § 547(c)(2) protects “ordinary trade credit transactions that are kept current.” Barash, 658 F.2d at 511. See also In re Daikin Miami Overseas, Inc., 65 B.R. 396, 398 (S.D.Fla.1986); In re Bourgeois, 58 B.R. 657, 659 (Bankr.W.D.La.1986). ECI’s payment, however, was not part of any recurring, customary trade transactions. It was a one-time payment to settle a breach of contract claim. SOCAP argues that ECI’s debt to SO-CAP arose out of incidents—the breach and settlement—related to the oil purchase contract, an ordinary business transaction for both ECI and SOCAP. SOCAP also argues that ECI’s payment was one a small oil purchaser like ECI would make if it wanted to maintain credibility in the world oil market. Thus, SOCAP contends, ECI incurred its debt to and paid SOCAP in the ordinary course of both SOCAP’s and ECI’s businesses. SOCAP further maintains that it did nothing abnormal to take advantage" } ]

[ { "docid": "22541712", "title": "", "text": "had not been established beyond a reasonable doubt. Although defense counsel had briefly adverted to the possibility of “entrapment” in'his summation to the jury, he did not request jüdgment of acquittal on that ground. Nor did he request any instruction on the point- or offer at the trial any evidence particularly aimed at such a defense. Nevertheless, the trial judge did. charge on , entrapment. Petitioner made no objection to this •' instruction, or to any'other aspect of the charge. The jury acquitted On Count 1 and found petitioner guilty on Counts 2, 3 and 4. • A motion for judgment notwithstanding the verdict “as a matter of law on the evidence” was denied, and petitioner was sentenced to a term of imprisonment for one year. Following per curiam affirmance of the conviction by the Court of Appeals for the First Circuit, 305 F. 2d 825, we granted certiorari, 371 U. S. 859, to consider the two questions stated at the outset of this opinion. Supra, pp. 428-429. I. The defense of entrapment, its meaning, purpose, and application, are problems that have sharply divided this Court on past occasions. See Sorrells v. United States, 287 U. S. 435; Sherman v. United States, 356 U. S. 369; Masciale v. United States, 356 U. S. 386. Whether in the absence of a conclusive showing the defense is for the court or the jury, and whether the controlling standard looks only to the conduct of the Government, or also takes into account the predisposition of the defendant, are among the issues that have been mooted. We need not, however, concern ourselves with any of these questions here, for under any approach, petitioner’s belated claim' of entrapment is insubstantial, and the record fails to show any prejudice that would warrant reversal on this score. The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection, and prevention of crime. Thus before the issue of entrapment can fairly be" } ]

[ { "docid": "3195950", "title": "", "text": "for the purpose of showing his reasonable belief in appellant’s criminal propensities at the time he approached appellant to attempt to effectuate the sale. Moreover, this brief allusion was offered only in rebuttal following appellant’s injection of the defense of entrapment, bringing into play this very issue of the agent’s own conduct. See Sherman v. United States, 356 U.S. 369 at 382, 78 S.Ct. 819, at 825, 2 L.Ed.2d 848 (1958). Justice Frankfurter in his concurring opinion stated: “The intention referred to, therefore, must be a general intention or predisposition to commit, whenever the opportunity should arise, crimes of the kind solicited, and in proof of such a predisposition evidence has often been admitted to show the defendant’s reputation, criminal activities, and prior disposition. The danger of prejudice in such a situation, particularly if the issue of entrapment must be submitted to the jury and disposed of by a general verdict of guilty or innocent, is evident. The defendant must either forego the claim of entrapment or run the substantial risk that, in spite of instructions, the jury will allow a criminal record or bad reputation to weigh in its determination of guilt of the specific offense of which he stands charged. Furthermore, a test that looks to the character and predisposition of the defendant rather than the conduct of the pólice loses sight of the underlying reason for the defense of entrapment.” A cautionary instruction by the Judge at this point in the trial might well have been in order. We cannot perceive, however, how this question and answer, in view of the overwhelming evidence of appellant’s participation in both sales would constitute reversible error. Although appellant attempts to assail the charge on lawful and unlawful entrapment by contending that there was no evidence of a lawful entrapment, we deem such argument merely the repetition of his previous assertion as to the sufficiency of the evidence in this regard. It is the duty of the Court to instruct the jury on all issues raised in the trial. Whether entrapment is lawful or unlawful is a question for the jury." }, { "docid": "22305857", "title": "", "text": "and that Tucker had no predisposition to commit the crimes. “There are two elements to the defense of entrapment: (1) government inducement of the crime and (2) the absence of predisposition on the part of the defendant.” Davis, 36 F.3d at 1430. “Generally, ‘the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused.’ ” Id. (quoting Sherman v. United States, 356 U.S. 369, 377, 78 S.Ct. 819, 823, 2 L.Ed.2d 848 (1958)). “It is inappropriate for an appellate court to determine whether a defendant was entrapped when such a determination would necessarily entail ‘choosing between conflicting witnesses’ and ‘judging credibility.’ ” Id. (citing Sherman, 356 U.S. at 373, 78 S.Ct. at 821). “To establish [inducement] as a matter of law, the defendant must point to undisputed evidence making it patently clear that [the government induced] an otherwise innocent person ... to commit the illegal act by trickery, persuasion, or fraud of a government agent.” United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). “Where the government has induced an individual to break the law and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to first being approached by government agents.” Davis, 36 F.3d at 1430. In evaluating predisposition, we consider five factors: (1) the defendant’s character and reputation; (2) whether the government initially suggested criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. See United States v. McClelland, 72 F.3d 717, 722 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1448, 134 L.Ed.2d 567 (1996). “Although none of these five factors controls, the most important is the defendant’s reluctance to engage in criminal activity.” Davis, 36 F.3d at 1430. To prove the defendant’s predisposition, the government can rely upon evidence occurring after the initial contact with a government agent. See Jacobson v. United States, 503 U.S." }, { "docid": "9507826", "title": "", "text": "valid defense to a criminal charge, A person otherwise innocent may not be punished for an alleged offense which is in reality the product of the “creative activity” of Government officials. At the same time it is equally well settled that the fact that a Government agent affords an opportunity for the commission of an offense and otherwise engages in artifice and stratagem does not constitute entrapment. When a person is shown to be “ready and willing” to violate the law, the fact that an opportunity to do so is provided by undercover agents is not entrapment. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1975); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). See also United States v. Gurule, 522 F.2d 20 (10th Cir.), cert. denied, 425 U.S. 975, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1975). Application of the foregoing principles leads us to conclude that the district court in the instant case did not err in denying defendants’ motions for a directed verdict and in submitting to the jury the issue of entrapment. Such was an issue of fact, and not one of law. The instructions given the jury concerning entrapment were not objected to by counsel as required by Fed.R. Crim.P. 30. And the instructions in our view adequately advised the jury on the subject. By its verdict the jury held, in effect, that the Government had negatived the entrapment defense and there is evidence to support such resolution. On appeal we should in such circumstance not disturb the jury’s determination of the matter. In the instant case the defendants themselves testified that it was the flashing of “big money” which induced them into procuring the cocaine which they then sold the agent. However, the “lure of easy income,” standing alone, does not establish entrapment, it is only an inducement. Masciale v. United States, 356 U.S. 386," }, { "docid": "22191649", "title": "", "text": "369, 78 S.Ct. 819, 821, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. “Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials. * * To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman v. United States, supra, at 372. Santore is clearly within the latter category. He was not reluctant to negotiate a sale of narcotics at his first meeting with Agent Picini. At their second meeting he raised the subject himself. The district court quite properly found that Picini did not persuade San-tore to commit the crime and that he only provided the defendant with an opportunity which the latter was ready and willing to take advantage of. Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, rehearing denied 1958, 357 U.S. 933, 78 S.Ct. 1367, 2 L.Ed.2d 1375. Santore further maintains that even if he was not entrapped with respect to the first sale, we must find that the agents’ “continued inducement” of him to arrange sale after sale entrapped him. True, the agents expressed dissatisfaction with the product supplied by Valle and Malfi, and they insisted that Santore take them to his New York connection. However, in view of defendant’s apparent ready willingness to find new suppliers, and arrange new sales, we cannot say that that inducement constituted entrapment. We think the test to be applied to these subsequent relations is the same test that governs an initial contact between a government agent and a suspected criminal. The public policy which, within limits, permits government agents to practice the art of deception is not dissipated when one member of a criminal group has been discovered and discovery of the others through that contact is desired. III. The Legality of the Search of Lorenzo Orlando’s Home The defendant Lorenzo Orlando moved the district court to suppress all the evidence found by the agents during their search of his" }, { "docid": "10814734", "title": "", "text": "charged. My colleagues now propose to make the defense available to defendants whom the Government never sought to entice but who were influenced secondhand by a person to whom alone the Government’s inducements were directed. In so holding, the majority have rejected a rule of law that has received the approval of every court hearing criminal appeals in the federal system. The Supreme Court has expressed the rule very simply. Entrapment, the Court says, deals with the manufacturing of crime by “law enforcement officials and their agents,” Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963), with the performance of an illegal act “at the instance of governmental officials,” Sorrells v. United States, supra, 287 U.S. at 451, 53 S.Ct. at 216. According to the Court, “[e]ntrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law enforcement officials.” Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958) (quoting Sorrells v. United States, supra, 287 U.S. at 451, 53 S.Ct. at 216) (emphasis by Sherman Court). The Court has recognized as a standard entrapment instruction a charge that the jury should acquit if it had “a reasonable doubt whether the defendant had the previous intent or purpose to commit the offense .. . and did so only because he was induced or persuaded by some officer or agent of the government.” United States v. Russell, 411 U.S. 423, 427 n.4, 93 S.Ct. 1637, 1640, n.4, 36 L.Ed.2d 366 (1973). The substance of this standard instruction was given on three occasions by the court below without objection from defense counsel. However, because both defendants were asserting an entrapment defense, the court also charged over defense objection that if one of the defendants (Mrs. Valencia) was entrapped and then went out and induced another defendant (Mr. Valencia) to become involved, the second defendant (Mr. Valencia) would not be entitled to' the defense of entrapment. The majority hold this to be error, stating that “[i]f a person is brought into a criminal scheme after" }, { "docid": "349478", "title": "", "text": "brother let the agents in. Nordeste began running toward the bathroom, but was overtaken and apprehended by McDonnell. We turn now to Nordeste’s contention that the instruction given on the defense of entrapment was prejudicially erroneous. In its instruction the court told the jury that if it should find that before anything occurred respecting the alleged offenses, the accused was ready and willing to commit crimes such as those charged whenever the opportunity was offered, and the government merely offered the opportunity, the accused is not entitled to the defense of unlawful entrapment. Continuing, the court instructed : “If, on the other hand, the Jury should find that the accused had no previous intent or purpose to commit any offense of the character here charged, and did so because he was induced or persuaded by some agent of the Government, then the prosecution seduced an innocent person, and the defense of unlawful entrapment is a good defense, and the Jury should acquit the Defendant.” (Emphasis added.) Nordeste argues, in effect, that the use of the words “innocent person” in this part of the instruction may have misled the jury into believing that the defense of entrapment is only available to one who is otherwise innocent. He calls attention to the concurring opinion of Mr. Justice Frankfurter in Sherman v. United States, 356 U.S. 369, 380, 78 S.Ct. 819, 2 L.Ed.2d 848, where the statement is made that courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because “even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced.” In this concurring opinion, reference is also made to the dissenting opinion of Mr. Justice Holmes, in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944, where this oft-quoted statement appears : “[F]or my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.” While it is preferable to avoid use of the term “innocent" }, { "docid": "23582224", "title": "", "text": "he wanted the next day. John L. Kelly, in charge of the Federal Narcotics office at Houston, Texas, and a chemist for the Alcohol and Tobacco tax division, observed the second transaction between the defendant and Robinson. Robinson turned over both packages of heroin to Kelly and, later, chemists identified both the packages as having contained heroin. I. Appellant argues vigorously that he was entrapped. The Supreme Court gave the doctrine of entrapment careful consideration in Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. In 1958 the Supreme Court again fully considered the defense of entrapment. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, rehearing denied 357 U.S. 933, 78 S.Ct. 1367, 2 L.Ed.2d 1375. Under Sorrells, Sherman, and Masciale, the issue of entrapment is a question for the jury, unless as a matter of law the defendant has established beyond a reasonable doubt that he was entrapped. See Accardi v. United States, 5 Cir., 1958, 257 F.2d 168, certiorari denied 358 U.S. 883, 79 S.Ct. 124, 3 L.Ed.2d 112; Coronado v. United States, 5 Cir., 1959, 266 F.2d 719. In determining if there has been entrapment as a matter of law this Court has considered not only the predisposition of the accused but has weighed also the conduct of the government agents. Accardi v. United States, supra. In the instant case we cannot find entrapment as a matter of law. There was sufficient evidence of the predisposition (character and general intention of the accused) to submit the case to the jury. Thus, there was evidence that Washington had made prior sales to narcotics addicts. He showed no hesitancy in negotiating a sale of heroin immediately upon being introduced to Robinson. He was willing to arrange a sale of heroin over the telephone. And this second sale was a sale of heroin in Washington’s possession, not of heroin he was 'to obtain. Lloyd Washington complained that he was not getting enough business from Robinson" }, { "docid": "23070671", "title": "", "text": "did not inject any new issue into the case as argued. We have carefully read and considered the entire record in the case and must conclude that the accused received a fair trial, free of any prejudice. Affirmed. . “To constitute a defense, the entrapment must be unlawful. Unlawful entrapment means that the idea of committing the crime originated with the law enforcement officers or their agents, rather than with the defendant; that he had no previous disposition to violate the law, and that they urged and induced him to commit the crime charged. “This defense is based on the policy of the law not to ensnare or entrap innocent persons into the commission of a crime, and the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped. “The defense of unlawful entrapment is not established if the defendant was ready and willing to violate the law, and the law enforcement officers, or their agents, merely afforded him the opportunity of committing the crime. Under these circumstances,\" entrapment is lawful, rather than unlawful, even though the law enforcement officers may have used a ruse or otherwise concealed their identity.” . 21 Am.Jur.2d, Criminal Law § 143. . Ortiz v. United States, 9 Cir., 358 F.2d 107; United States v. Georgious, 7 Cir., 333 F.2d 440, cert. denied, 379 U.S. 901, 85 S.Ct. 191, 13 L.Ed.2d 176. And see, Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. . See the recent decision of this Court in Garcia v. United States of America, 10 Cir., 373 F.2d 806, for a further discussion of the subject. . Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859; Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462. . Ryles v. United States, 10 Cir.," }, { "docid": "11209969", "title": "", "text": "and the second it was behind a shed, Appellant denied selling any whiskey to Shaw, but admitted putting Shaw in contact with Haynes as the source of supply. The questions for consideration on this appeal are whether the evidence supports the verdict and whether the evidence shows as a matter of law that appellant was entrapped by Agent Shaw into possessing and concealing nontaxpaid whiskey on December 7 and December 18, 1962. The oral arguments were directed primarily to the entrapment question. Ordinarily, the question of entrapment is one for the jury. It is only when the evidence points to but one conclusion that it becomes a question of law. Sorrells v. United States, 287 U.S. 435, 452, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. If the violations by the accused were “the product of the creative activity” of law-enforcement officials, the defense of entrapment would have merit. On the other hand, if the Government agents only afforded opportunities for violations and did not persuade an innocent person to violate the law, the entrapment defense would not have merit. Sherman v. United States, supra. The law permits traps by law-enforcement officers for an unwary criminal, but does not permit them for the unwary innocent. Persuasion is a factor in an entrapment defense. The element of persuasion is not present in this case. United States v. Klosterman, 248 F.2d 191, 195, 69 A.L.R.2d 1390 (C.A.3). In testing the second question, namely, the sufficiency of a motion for an acquittal, the trial judge must view the evidence and reasonable inferences to be drawn therefrom most favorable to the Government. If he concludes that a reasonable mind may determine guilt beyond a reasonable doubt, the case must go to the jury. United States v. Conti, 339 F.2d 10, 13 (C.A.6). The evidence in this case supports the verdict of the jury and the judgment of the lower court is, therefore, affirmed." }, { "docid": "3437199", "title": "", "text": "had directed him picked up a package of heroin which he immediately turned over to Davis, the agent, who was waiting outside in his automobile. At the trial, as here, the major contentions center around the part played by Manning in the transaction underlying these convictions. The defendants sought to maintain the defense of entrapment. They also asserted as a defense the illegal conduct of Manning, the Government’s special employee, in providing Place with narcotics for his personal use; this illegal conduct, it was maintained, precluded prosecution for the crimes committed by the defendants which so shortly followed. First, as to the defense of entrapment. The defendants, now on appeal, contend that the issue of entrapment was one for the judge, relying for that position on the dissenting opinion in Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. They posit error on the judge’s action in submitting the issue to the jury. We think the law in its present state is to the contrary and hold that when the state of the evidence is such as to create an issue of fact, the issue is one for the jury. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and Masciale v. United States, supra. In this case, however, we find no evidence whatever of entrapment. There was a wealth of unconlradicted evidence that both defendants were thoroughly predisposed to violate the narcotics laws, were currently and continuously dealing in narcotics, and that Place, indeed, had supplied narcotics to Manning before the latter had volunteered to serve as an informer. There was no evidence that the sale charged was “the product of the creative activity” of Davis or Manning or any other Government agent, or that the agents went further than to “afford opportunities or facilities for the commission of the offense,” within the meaning of the cases above cited. Unlike the defendant in the Sherman case, the defendants here were not innocent parties seeking to break themselves of" }, { "docid": "12454997", "title": "", "text": "Hon. William C. Mathes’ “Jury Instructions and Forms for Federal Criminal Cases,” 27 F.R.D. 39 (1961). Repetitious and unnecessarily long charges are confusing to a jury and can be held prejudicial. United States v. Persico, 2 Cir. 1965, 349 F.2d 6, 8 (conviction after a thirteen-hour charge reversed). But length and magnitude in a charge are not per se untenable. United States v. Crosby, 2 Cir. 1961, 294 F.2d 928, 943, cert. den., 1962, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (conviction after an eight-hour charge upheld as to the charge). (5) Entrapment. The appellants argue that the use of a government informer makes for entrapment. This ipsedixitism is unsupported by authorities or by any acceptable rationale. In Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, the Supreme Court stated: “The defense of entrapment, its meaning, purpose, and application, are problems that have sharply divided this Court on past occasions. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. Whether in the absence of a conclusive showing the defense is for the court or the jury, and whether the controlling standard looks only to the conduct of the Government, or also takes into account the predisposition of the defendant, are among the issues that have been mooted. We need not, however, concern ourselves with any of these questions here, for under any approach, petitioner’s belated claim of entrapment is insubstantial, and the record fails to show any prejudice that would warrant reversal on this score. “The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection and prevention of crime. Thus before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at" }, { "docid": "23582223", "title": "", "text": "go back to the source, obtain another package, and deliver it either to the special employee or •to Robinson. Again, the agents gave the defendant the purchase price of the heroin. The defendant testified that he bought narcotics on this occasion only because the special employee was ill. Robinson’s testimony conflicts on every material point. He stated that he over heard the telephone conversation and that it went not at all as the defendant testified. Instead, Robinson said that the defendant complained about his buying heroin from one Manuel. The two Washingtons agreed on the purchase of four capsules of heroin. When Lloyd Washington delivered the heroin, however, Booker Washington told him that he had more money than was needed for the purchase of the four capsules. The defendant promptly produced five more capsules. The sale was completed therefore for nine capsules. Robinson pointed out that the heroin was in poor condition and inquired as to when the defendant would have “better stuff”. According to Robinson, the defendant told him that he could have anything he wanted the next day. John L. Kelly, in charge of the Federal Narcotics office at Houston, Texas, and a chemist for the Alcohol and Tobacco tax division, observed the second transaction between the defendant and Robinson. Robinson turned over both packages of heroin to Kelly and, later, chemists identified both the packages as having contained heroin. I. Appellant argues vigorously that he was entrapped. The Supreme Court gave the doctrine of entrapment careful consideration in Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. In 1958 the Supreme Court again fully considered the defense of entrapment. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, rehearing denied 357 U.S. 933, 78 S.Ct. 1367, 2 L.Ed.2d 1375. Under Sorrells, Sherman, and Masciale, the issue of entrapment is a question for the jury, unless as a matter of law the defendant has established beyond a reasonable doubt that he was entrapped. See" }, { "docid": "2266653", "title": "", "text": "appellants’ motions for judgments of acquittal on the grounds of entrapment of appellants by the United States government agents. This contention is without foundation in the record before us. Unlawful entrapment has been defined as the “solicitation of an otherwise innocent person to commit a crime solely for the purpose of prosecution.” Rogers v. United States, 367 F.2d 998, 1001 (8th Cir. 1966), cert. denied, 386 U.S. 943, 87 S.Ct. 976, 17 L.Ed.2d 874 (1967). It occurs only when the criminal conduct was the result of “creative activity” on the part of law-enforcement officers. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The record here is absolutely void of any evidence that the federal game agents solicited, inspired, incited, persuaded, or otherwise prompted the appellants to bait the fields in question or hunt over the baited fields. On the contrary, the agents maintained a completely passive role merely observing the fields in question, and at no time did “creative activity” on their part contribute to the violation of which appellants were convicted. Therefore, the trial court properly denied appellants’ motions for judgments of acquittal. There was no evidence to justify the defense of entrapment. As their final ground for reversal, appellants contend the trial court erred in denying appellants’ motion to strike all evidence and testimony with reference to baiting in the north field for failure of the government to show beyond a reasonable doubt that the millet was there under conditions other than normal agricultural procedures. The evidence relating to the north field was clearly admissible as tending to show an element of the offense charged. Viewing this evidence in the light most favorable to the government as we must do, Anderson v. United States, 369 F.2d 11 (8th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967), we cannot say as a matter of law the evidence was insufficient to raise a jury question. It was, therefore, for the jury to determine whether the government had proved beyond a reasonable doubt that the north field had been" }, { "docid": "16650837", "title": "", "text": "I gave particular kinds of answers? Or anything of that sort?”, to which the witness answered “No, sir.” Appellant’s attorney was: given an opportunity to offer additional testimony, but did not do so. Under the circumstances we find no abuse of discretion on the part of the District Judge-in denying appellant’s motion for a mistrial. We find no merit in appellant’s, contention that the District Judge erred in overruling appellant’s motion for judgment of acquittal at the conclusion of all the evidence based on the ground that the evidence showed that the appellant was unlawfully entrapped into committing the bribe. As stated by the Supreme Court in Lopez v. United States, 373 U.S. 427, 434-435, 83 S.Ct. 1381, 10 L.Ed.2d 462, rehearing denied, 375 U.S. 870, 84 S.Ct. 26, 11 L.Ed.2d 99, the defense of entrapment is concerned with the manufacturing of crime by law enforcement officers and their agents, which is far different from the permissible stratagems involved in the detection and prevention of crime. Entrapment exists only when the government agents induce and originate the criminal intent of a defendant. There is no entrapment where the criminal intent is already present, and the agents merely afford the opportunity for the commission of a crime. Sorrells v. United States, 287 U.S. 435, 441-442, 53 S.Ct. 210, 77 L.Ed. 413. If the foregoing evidence on behalf of the Government was believed, as the jury had the right to do, it appears clear that it was the appellant who suggested the payment of a bribe and that Agent Sands merely furnished him the opportunity of carrying it out. The issue was submitted to the jury under instructions which appear to us to be appropriate and to which no objection was made by appellant. Masciale v. United States, 356 U.S. 386, 388, 78 S.Ct. 827, 2 L.Ed.2d 859, rehearing denied, 357 U.S. 933, 78 S.Ct. 1367, 2 L.Ed.2d 1375. Appellant complains of the use of the electronic transmitting device by Sands and the admission in evidence of incriminating statements heard by other agents by means of it. We are of the opinion" }, { "docid": "22191648", "title": "", "text": "plausibility of this evidence and mainly centers this attack upon the testimony relative to the initial meeting. While the writer of this opinion is astonished to learn how easily Agent Picini was able to effectively make his initial contact with Santore, we cannot say that the district court, after viewing the witness-stand behavior of Agent Picini and of the defendant who testified in his own behalf, was unjustified in believing that what Picini stated occurred actually did occur as stated. Certainly more than a reaction of mild astonishment would be required for us to intervene and set aside this fact-finding conclusion of an experienced trial judge. The Government’s version of events subsequent to February 26 is readily believable and of course thereby lends plausibility to the testimony relative to the initial contact. Accepting the facts as presented by the Government the facts do not support the defense of entrapment. It is well settled that government officers may employ artifice or stratagem to catch those engaged in criminal activities. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 821, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. “Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials. * * To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Sherman v. United States, supra, at 372. Santore is clearly within the latter category. He was not reluctant to negotiate a sale of narcotics at his first meeting with Agent Picini. At their second meeting he raised the subject himself. The district court quite properly found that Picini did not persuade San-tore to commit the crime and that he only provided the defendant with an opportunity which the latter was ready and willing to take advantage of. Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, rehearing denied 1958, 357 U.S. 933, 78 S.Ct. 1367, 2 L.Ed.2d 1375. Santore further maintains that even" }, { "docid": "22143964", "title": "", "text": "to consider the instructions in their entirety. The jury was properly informed, in a general instruction, as to the burden of proof which rested upon the prosecution; however, we cannot assume that it carried the advice of the general instruction into application to the instruction emphasizing the specific elements of the defense. The possibility that there was confusion or misunderstanding is strengthened, not eliminated, by view of the instructions as a whole. The judgment of conviction is reversed. The appellant is entitled to a new trial. Reversed and remanded. . Evidence of this character is admissible as tending to create inferences opposed to the claim of entrapment. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). . “ * * * The entrapment defense does not extend to inducement by a private citizen; yet it has found general application to cases where the officer acts through a private citizen, as in the case at bar.” Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127, 128 (1963). See also Henderson v. United States, 237 F.2d 169, 61 A.L.R.2d 666 (5th Cir. 1956). . These quoted instructions were immediately preceded by the following: “The law recognizes two kinds of entrapment, unlawful entrapment and lawful entrapment. Where a person has no previous intent to violate the law, but is induced or persuaded by law enforcement officers to commit a crime, he is entitled to the defense of unlaw-entrapment because the law as a matter of policy forbids a conviction in such a case. “On the other hand, where a person has the readiness and willingness to break tbe law, the mere fact that Government agents provide what appears to be a favorable opportunity is no defense, but is lawful entrapment. When, for example, the Government lias reasonable grounds for believing that a person is engaged in the illicit sale of narcotics, it is not unlawful entrapment for a Government agent to pretend to be someone else and to offer either directly or through an informer, or other decoy, to purchase narcotics from such suspected person.” . Such" }, { "docid": "20360913", "title": "", "text": "of predisposition on the part of the defendant to engage in the criminal conduct.” United States v. Ellis, 23 F.3d 1268, 1271 (7th Cir.1994) (citing Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988)). The Supreme Court has described the defense of entrapment as follows: In their' zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Sorrells v. United States, 287 U.S. 435, 442 [53 S.Ct. 210, 213, 77 L.Ed. 413] (1932); Sherman v. United States, 356 U.S. 369, 372 [78 S.Ct. 819, 820-21, 2 L.Ed.2d 848] (1958). Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. United States v. Whoie, 925 F.2d 1481, 1483-84 (D.C.Cir.1991). Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell the drugs, and, if the offer is accepted, make an arrest on the spot or later. Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540-41, 118 L.Ed.2d 174 (1992) (emphasis added). Thus the government must prove that a defendant “was predisposed to violate the law before the Government intervened.” Id. at 549 n. 2, 112 S.Ct. at 1541 n. 2. Accordingly, the district court gave the jury the following instruction: One of the issues in this case is whether the defendant has been entrapped. A defendant who has been entrapped must be found not guilty. If the defendant had no prior intent or disposition to commit the offense charged and was induced or persuaded to do so by law enforcement officers or their agents, then she was entrapped. If, however, the defendant had a prior intent or predisposition to commit the offense" }, { "docid": "16719018", "title": "", "text": "Double Jeopardy Clause. Faymore further contends that the district court erred in its entrapment instructions because those instructions impermissibly placed upon him the burden of proving entrapment. Where the facts are undisputed or the government has presented no evidence from which a reasonable juror could find “predisposition,” the defense of entrapment may be found as a matter of law; otherwise, that defense is a question of fact which must be submitted to the jury. United States v. Grimes, 438 F.2d 391 (6th Cir.1971), cert. denied, 402 U.S. 989, 91 S.Ct. 1684, 29 L.Ed.2d 155 (1972). In the case before us, the fact of Faymore’s predisposition was disputed and thus properly presented to the jury. The Court entered an initial jury charge and then, upon the prosecutor’s request, decided to recall the jury, one-half hour into its deliberations to offer a curative charge. In a promptly curative manner, the Court instructed the jury: Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he may be a victim of entrapment. The court then charged the jury that the government had the burden of proving beyond a reasonable doubt Faymore’s predisposition: If the evidence in this case should leave you with a reasonable doubt as to whether Dr. Faymore had the previous intent or purpose of predisposition to commit a narcotic law violation ... and did so only because he was induced or persuaded by some officer or agent of the Government, then in that event you must find Dr. Faymore not guilty on those counts. The defense entered no objections to these instructions. The curative charge moreover was entirely consistent with Supreme Court and Sixth Circuit precedent. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Hodge, 539 F.2d 898 (6th Cir.1976); United States v." }, { "docid": "23044475", "title": "", "text": "were not offered for the truth of the matters asserted, but rather “to show their effect on Storm.” Whether or not such testimony was relevant or admissible as nonhearsay, we recognize that the prejudicial aspect of this testimony is clear, even if it might be outweighed by its probative value. The district court erred in not containing the force of this evidence with a limiting instruction. Nevertheless, given the wealth of evidence against Lopez and his obvious experienced behavior in this patently commercial transaction, we conclude that the failure to give such an instruction was harmless. III. Entrapment as a Matter of Law Lopez contends he was entrapped as a matter of law. We review this issue de novo, United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994), cert. denied, 513 U.S. 1171, 115 S.Ct. 1147, 130 L.Ed.2d 1106 (1995), and we reject Lopez’s contention. There are two elements to the defense of entrapment: (1) government inducement of the crime, and (2) the absence of predisposition on the part of the defendant. Id. “Where the government has induced an individual to break the law and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to first being approached by government agents.” Id. Generally, “the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused.” Sherman v. United States, 356 U.S. 369, 377, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958). “It is inappropriate for an appellate court to determine whether a defendant was entrapped when such a determination would necessarily entail ‘choosing between conflicting witnesses’ and ‘judging credibility.’” Davis, 36 F.3d at 1430 (quoting Sherman, 356 U.S. at 373, 78 S.Ct. at 821). Lopez’s entrapment claim rests primarily on his own highly suspect and questionable explanation of the facts, an explanation directly contradicted by the Government’s strong evidence. “[T]he resolution of such conflicting assertions of fact relevant to the entrapment issue is a credibility question for the" }, { "docid": "12454998", "title": "", "text": "v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. Whether in the absence of a conclusive showing the defense is for the court or the jury, and whether the controlling standard looks only to the conduct of the Government, or also takes into account the predisposition of the defendant, are among the issues that have been mooted. We need not, however, concern ourselves with any of these questions here, for under any approach, petitioner’s belated claim of entrapment is insubstantial, and the record fails to show any prejudice that would warrant reversal on this score. “The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection and prevention of crime. Thus before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime charged.” 373 U.S. at 434-435, 83 S.Ct. at 1385-1386. See also United States v. Berry, 2 Cir. 1966, 362 F.2d 756, 758. We find no evidence of inducement; Lacaze was the offeror and Cortez was the offeree. Compare Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. It was certainly reasonable for the jury, which received a proper instruction on entrapment from the trial court, to conclude that Lacaze was ready and will ing without persuasion to commit the offense. See Herrera v. United States, 5 Cir. 1967, 384 F.2d 525; Accardi v. United States, 5 Cir. 1958, 257 F.2d 168. Cf. Bullock v. United States, 5 Cir. 1967, 383 F.2d 545. (6) Miranda and Escobedo. The defendants, of course, argue that they were denied rights established by Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Escobedo v. State of" } ]

[ { "docid": "11396862", "title": "", "text": "We turn finally to the issues surrounding the seizure of the counterfeit note. The government contends there was no search involved in the seizure. In response we merely note that an examination of the contents of a person’s pocket is clearly a search, whether the pocket is emptied by the officer or by the person under the compulsion of the circumstances. The government also contends defendant consented to the seizure. A search and seizure may be made without a warrant or probable cause if the subject gives consent, but the government bears the burden to prove that the consent given validly waived the subject’s Fourth Amendment rights. This court recently restated the standard for testing the voluntariness of consent in United States v. Abbott, 546 F.2d 883, 885 (10th Cir. 1977): (1) There must be clear and positive testimony that consent was “unequivocal and specific” and “freely and intelligently” given; (2) the government must prove consent was given without duress or coercion, express or implied; and (3) the courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and there must be convincing evidence that such rights were waived. The issue of the validity of a consensual search is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamante, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In our review of this issue, we view the evidence in the light most favorable to the trial court’s determination. Although defendant said he did not object to the agents examining his currency, before the agents asked to see his cash they told him he was suspected of a serious crime, gave him a faulty recitation of his constitutional rights, told him he could be jailed that night, and told him he had lo surrender all the counterfeit money he had. Based on this evidence the trial court was justified in concluding that the government had not sustained its burden. There was no “clear and positive testimony” or any “convincing evidence that [defendant’s Fourth Amendment] rights were waived.” United States v. Abbott," } ]

[ { "docid": "14724093", "title": "", "text": "also argues that he was arrested without probable cause when he was asked to accompany Palmer to the security office. Bell says that his package was seized without consent or reasonable suspicion and that there was insufficient evidence to support his conviction. II. Analysis When reviewing the denial of a motion to suppress we accept the trial court’s findings of fact unless they are clearly erroneous. United States v. Maez, 872 F.2d 1444, 1455-56 n. 15 (10th Cir.1989). We must consider the evidence adduced at the suppression hearing and the trial in the light most favorable to the ruling made. United States v. Gay, 774 F.2d 368, 375 (10th Cir.1985). A. Ziebarth’s Detention and Arrest The initial contact between Palmer and Ziebarth, where Palmer asked Ziebarth if he would mind talking for a moment, was clearly the sort of encounter that implicates no Fourth Amendment interests, as the magistrate reasoned. Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 310-11, 83 L.Ed.2d 165 (1984) (per curiam). “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen_” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (opinion of White, J., in which Marshall, Powell, and Stevens, JJ., joined). See also United States v. Santillanes, 848 F.2d 1103, 1106 (10th Cir.1988) (citing United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.1984)), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984) and United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.1986), (recognizing three types of police-citizen encounters). Ziebarth argues that any consent ended when Palmer requested permission to inspect his ticket and identification. He contends that the intrusion escalated further when Palmer identified himself as a narcotics officer and asked to inspect his luggage and search his person. The government argues, and the magistrate and trial judge found, that Ziebarth consented to the examination of" }, { "docid": "3068994", "title": "", "text": "automobile, and Preciado consented and opened the trunk. Garcia observed a funnel in the trunk, and smelled gasoline in the funnel. Garcia was suspicious because he had been involved in previous drug seizures in which marijuana had been concealed in the gas tank using a funnel. Garcia then looked underneath the automobile, and he noticed the bolts holding the gas tank had been tampered with. He tapped on the gas tank with his hand, and heard a solid sound, indicating a bulk item had. been placed in the gas tank. Agent Martinez also tapped the gas tank and heard a solid sound. Garcia requested a dog trained to detect narcotics be brought to the’ checkpoint. Garcia asked Preciado if he minded waiting for approximately thirty minutes for the dog to arrive, and Preciado said he did not mind. The dog arrived approximately forty minutes later and alerted the agents to the presence of narcotics in the gas tank. The tank was removed, and the agents discovered 61 pounds of marijuana. Pre-ciado thereafter made several incriminating statements to Garcia. The district court found Preciado exhibited nervousness, which standing alone was sufficient to raise a reasonable suspicion and justified detaining him for further investigation. The court also found consent was freely and voluntarily given to search the vehicle. The standard of review is clear: In reviewing a denial of a motion to suppress, the trial court’s finding of fact must be accepted by this- court unless clearly erroneous, United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.1984), with the evidence viewed in the light most favorable to the district court’s finding. United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984). U.S. v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). Preciado argues his detention and interrogation at the primary inspection area and his continued detention in the secondary inspection area went beyond the permissi ble scope of a routine border inspection. He argues that once Agent Garcia ascertained his immigration card was valid, he should have been- permitted to proceed without further delay. Application of the Fourth Amendment under the facts" }, { "docid": "9605203", "title": "", "text": "now appeal. DISCUSSION 1. Fourth Amendment Violation The standard of review of a district court’s denial of a motion to suppress is well established. The district court’s findings of fact must be accepted on appeal unless clearly erroneous, with the evidence viewed in the light most favorable to the district court’s findings. United States v. Pinter, 984 F.2d 376, 378 (10th Cir.1993); United States v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). Moreover, “[a]t a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge.” United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). The question of whether a Fourth Amendment violation occurred is a question of law that we review de novo. United States v. Corral, 970 F.2d 719, 723 (10th Cir.1992). In separate but similar briefs on appeal, Mr. and Mrs. Codys’ sole contention pertaining to the denial of their motion to suppress is that “the government failed to introduce any evidence that [Mr. Cody’s] consent was knowing and voluntary.” Brief of Clarence Edward Cody, at 7. “To admit evidence obtained in a consent search, the district court must find from the totality of the circumstances that (1) the defendant’s consent to an officer’s search was voluntary and (2) the search did not exceed the scope of the defendant’s consent.” United States v. Price, 925 F.2d 1268, 1270 (10th Cir.1991) (citation omitted). The government always has the burden of proving voluntary consent. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); Walker, 933 F.2d at 818. After hearing hours of testimony and viewing numerous exhibits, the district court found that the government met its burden. We accept the court’s findings. Ample evidence in the record supports the finding that Mr. Cody signed the disputed consent form, including the form, itself, and two agents’ testimony that they watched" }, { "docid": "14493255", "title": "", "text": "Amendment. The district court rejected his arguments, finding that there was a reasonable basis for the initial stop and the subsequent detention, and probable cause for Mr. McGehee’s arrest. We agree with the district court. 1. Standard of Review We recently have summarized succinctly the elements of the governing standard of review: When we review a district court’s denial of a motion to suppress, we review de novo the district court’s ultimate determination of reasonableness under the Fourth Amendment, but we accept the district court’s factual findings unless they are clearly erroneous and we view the evidence in the light most favorable to the prevailing party. United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012); see United States v. Kitchell, 653 F.3d 1206, 1216 (10th Cir.2011) (noting that “this court must ‘view the evidence presented at the suppression hearing in the light most favorable to the Government’ ” (quoting United States v. White, 584 F.3d 935, 941 (10th Cir.2009))); United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008) (noting that “we review de novo the ultimate determination of reasonableness under the Fourth Amendment”); United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir.2008) (noting that “we review the [district] court’s factual findings for clear error”). “We are permitted to consider evidence introduced at the suppression hearing, as well as any evidence properly presented at trial....” United States v. Hams, 313 F.3d 1228, 1233 (10th Cir.2002); accord United States v. Rios, 611 F.2d 1335, 1344 n. 14 (10th Cir.1979) (“We are not limited to considering only the evidence introduced at the suppression hearing. This court may also consider any evidence properly presented at trial, even though that evidence might not have been introduced at the pretrial hearing.”). 2. Reasonableness of the Search and Arrest The Fourth Amendment protects the public from “unreasonable searches and seizures,” U.S. Const, amend. IV, including unreasonable “investigatory stop[s]” or detentions, United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir. 2010). “Because a routine traffic stop is ‘more analogous to an investigative detention than a custodial arrest,’ the principles set forth in Terry v." }, { "docid": "23537273", "title": "", "text": "Gay responded when asked if he had been drinking. (Tr. III, 33). He emptied his pockets upon the request of one of the troopers. (Tr. III, 42). Finally, it is important to note that Gay consented to a search of the glove box which did not contain any incriminating evidence (Tr. III, 43), while he denied access to the trunk which a search later revealed contained 2.4 pounds of cocaine. (Tr. III, 45). We cannot say the trial court was clearly in error in finding the consent was valid. Second, Gay argues that even if the consent were valid, the troopers exceeded the scope of the consent when seizing the glass vial. The scope of a consent search is limited by the breadth of the actual consent itself. See State v. Kouc-oules, 343 A.2d 860, 866 (Me.1974). Consent to search a specific area limits the reasonableness of the search to that area. Any police activity that transcends the actual scope of the consent given encroaches on the Fourth Amendment rights of the suspect. See, e.g., State v. Johnson, 71 Wash.2d 239, 427 P.2d 705 (1967). The record shows that although Gay consented to a search of the glove box, Trooper Witt discovered the vial in an open ashtray adjacent to the glove box. (Tr. Ill, 51). Thus there was undisputed evidence that the vial was in plain view when discovered and seized. The vial was found in an open ashtray and in close proximity to the glove box. That which is in plain view is not the product of a search. Objects within the plain view of an officer, who has a right to be in a position to have that view, are subject to seizure. United States v. Marquez, 687 F.2d 328, 331 (10th Cir.1982); see also Bretti v. Wainwright, 439 F.2d 1042, 1046 (5th Cir.1971), cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971). 2. Search of the contents of Gay’s pockets Defendant Gay also asserts error in the denial of his motion to suppress evidence obtained as a result of his being compelled to" }, { "docid": "23537266", "title": "", "text": "some of the exhibits were discovered pursuant to a valid consent search, while others were discovered pursuant to a valid warrant search. (Tr. Ill, 73-74). We deal with each search separately. 1. The glovebox and the glass vial Gay argues the glass vial (Exhibit 4) was seized in violation of his Fourth Amendment rights. Gay contends that his intoxication at the time renders any consent to search invalid, and, if consent were deemed valid, that the troopers exceeded the scope of consent when they seized the glass vial. We find no merit in these arguments. The record shows that Trooper Crandall received a telephone call from the Denver dispatcher of the Colorado State Patrol advising him of a report of a driver possibly operating an automobile under the influence, traveling westbound on Interstate 70. (Tr. Ill, 14). The Denver dispatcher described the automobile as a “light blue Chrysler product, four-door, with black and yellow tags on it.” (Tr. Ill, 16). Shortly after the telephone call, Trooper Crandall observed an automobile fitting the description exiting Interstate 70 at Exit 241. (Tr. Ill, 15). While exiting, the automobile passed within six feet of Trooper Crandall who later testified that the automobile was traveling at an unusually slow exit speed (approximately ten miles per hour). (Tr. Ill, 17). Trooper Crandall watched the automobile travel approximately 150 yards past the Colorado State Patrol station. The vehicle stopped from ten to fifteen seconds in the traffic lane blocking traffic. It then completed the exit and again stopped in a parking lot off of Colorado Boulevard. (Tr. Ill, 18-19). At this point, troopers Crandall and Witt approached the stopped vehicle to investigate. It is clear that the Fourth Amendment applies to seizures of the person, including brief investigatory (also known as “Terry”) detentions. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct." }, { "docid": "2406337", "title": "", "text": "could run a sniffer dog around the car, and Pinedo consented. Kevin Thatcher, the canine handler, proceeded to inspect the car. The dog alerted the agents to the presence of narcotics in the floorboard and gas tank. The agents dismantled the floorboard and gas tank and discovered a large quantity of marijuana. Pinedo was thereafter advised of his Miranda rights and gave a statement to the agents. The district court found Pinedo exhibited nervousness, which by itself justified sending the car to the secondary inspection area. The court found the facts related by Pinedo during the initial encounter with Tijernia justified additional inquiry. Finally, the court found that the detention at the primary inspection area was brief, and when Pinedo reached the secondary inspection area, he voluntarily gave consent to search the trunk of his car and to run the sniffer dog around the car. The standard of review is clear: In reviewing a denial of a motion to suppress, the trial court’s finding of fact must be accepted by this court unless clearly erroneous, United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.1984), with the evidence viewed in the light most favorable to the district court’s finding. United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984). U.S. v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). Pinedo argues Tijerina lacked the necessary reasonable suspicion to detain him at the border patrol checkpoint after ascertaining his citizenship status and asking him about any suspicious circumstances. Thus, Tijerina’s request for consent to search the car was unlawful because it occurred while Pinedo was being illegally detained, and any product of the ensuing search is tainted by the constitutional violation and must be suppressed as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 415-17, 9 L.Ed.2d 441 (1963). The law governing stops and permissible questioning at permanent border checkpoints was restated in U.S. v. Sanders, 937 F.2d 1495 (10th Cir.1991): A permanent border checkpoint need not be located on the border. United States v. Martinez-Fuerte, 428 U.S. 543, 553 [96" }, { "docid": "23537264", "title": "", "text": "Battles. Trooper Witt and Agent Olivarez were able to identify the exhibits by the evidence tags placed on the packets, as well as by the exhibits’ appearances as to size and peculiarities. (Tr. IV, 34-35, 38-42, 65-66). See, e.g., Rosemund v. United States, 386 F.2d 412 (10th Cir.1967) (per curiam); see also United States v. Barnes, 586 F.2d 1052, 1056 (5th Cir.1978). Chemist Battles was able to identify the exhibits by her initials and other markings placed on the exhibits by her. (Tr. IV, 76-77). She was also present when the exhibits were sealed and later opened in the courtroom. (Tr. IV, 77-80). Thus, the Government had shown a chain of custody from the day of the seizure to the day of the trial. Absent some showing by the defendant that the exhibits have been tampered with, it will not be presumed that the investigators who had custody of them would do so. Unit ed States v. Wood, 695 F.2d at 462; O’Quinn v. United States, 411 F.2d at 80 (citing Brewer v. United States, 353 F.2d 260, 263 (8th Cir.1965)). There was no evidence introduced at trial showing any tampering with or alteration of the exhibits. We cannot say that the trial court abused its discretion in admitting the exhibits in evidence. IV Motions to Suppress When reviewing the denial of a motion to suppress, we must accept the trial court’s findings of fact unless they are clearly erroneous. See United States v. Leach, 749 F.2d 592, 600 (10th Cir.1984); United States v. Rios, 611 F.2d 1335, 1344 (10th Cir.1979). Furthermore, we must consider “the evidence adduced at the suppression hearing and the trial in the light most favorable to the government.” United States v. Leach, 749 F.2d at 600 (quoting United States v. Rios, 611 F.2d at 1344); see also United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984); United States v. DiGiacomo, 579 F.2d 1211, 1216 (10th Cir.1978). A. The Fourth Amendment Gay contends that the trial court erred in admitting in evidence the fruits of allegedly unlawful searches. The court admitted the evidence, finding that" }, { "docid": "23537265", "title": "", "text": "353 F.2d 260, 263 (8th Cir.1965)). There was no evidence introduced at trial showing any tampering with or alteration of the exhibits. We cannot say that the trial court abused its discretion in admitting the exhibits in evidence. IV Motions to Suppress When reviewing the denial of a motion to suppress, we must accept the trial court’s findings of fact unless they are clearly erroneous. See United States v. Leach, 749 F.2d 592, 600 (10th Cir.1984); United States v. Rios, 611 F.2d 1335, 1344 (10th Cir.1979). Furthermore, we must consider “the evidence adduced at the suppression hearing and the trial in the light most favorable to the government.” United States v. Leach, 749 F.2d at 600 (quoting United States v. Rios, 611 F.2d at 1344); see also United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984); United States v. DiGiacomo, 579 F.2d 1211, 1216 (10th Cir.1978). A. The Fourth Amendment Gay contends that the trial court erred in admitting in evidence the fruits of allegedly unlawful searches. The court admitted the evidence, finding that some of the exhibits were discovered pursuant to a valid consent search, while others were discovered pursuant to a valid warrant search. (Tr. Ill, 73-74). We deal with each search separately. 1. The glovebox and the glass vial Gay argues the glass vial (Exhibit 4) was seized in violation of his Fourth Amendment rights. Gay contends that his intoxication at the time renders any consent to search invalid, and, if consent were deemed valid, that the troopers exceeded the scope of consent when they seized the glass vial. We find no merit in these arguments. The record shows that Trooper Crandall received a telephone call from the Denver dispatcher of the Colorado State Patrol advising him of a report of a driver possibly operating an automobile under the influence, traveling westbound on Interstate 70. (Tr. Ill, 14). The Denver dispatcher described the automobile as a “light blue Chrysler product, four-door, with black and yellow tags on it.” (Tr. Ill, 16). Shortly after the telephone call, Trooper Crandall observed an automobile fitting the description exiting Interstate" }, { "docid": "14724092", "title": "", "text": "of the package was not incident to Bell’s arrest. Rather, the magistrate reasoned that the “search of the package was voluntary and consented to by Bell,” who told Whittaker (after Blue alerted) that the package contained money. I R. 50, p. 37. The trial court agreed. I R. 55, p. 6. Both defendants waived their right to a jury trial. The prosecution relied on the evidence presented in connection with the motions to suppress. It also proffered some additional testimony and exhibits, to which the defendants agreed. VII R. 9-18. The defense put on no evidence, but did object to some of the evidence proffered by the government. VII R. 18-24. The court found Ziebarth guilty of possession with intent to distribute and Bell guilty of an attempt to possess with intent to distribute. VII R. 30-32. On appeal, Ziebarth argues that he was detained without reasonable suspicion when Palmer asked to inspect his ticket and identification and that the intrusion escalated further when Palmer asked if he could search his person and luggage. He also argues that he was arrested without probable cause when he was asked to accompany Palmer to the security office. Bell says that his package was seized without consent or reasonable suspicion and that there was insufficient evidence to support his conviction. II. Analysis When reviewing the denial of a motion to suppress we accept the trial court’s findings of fact unless they are clearly erroneous. United States v. Maez, 872 F.2d 1444, 1455-56 n. 15 (10th Cir.1989). We must consider the evidence adduced at the suppression hearing and the trial in the light most favorable to the ruling made. United States v. Gay, 774 F.2d 368, 375 (10th Cir.1985). A. Ziebarth’s Detention and Arrest The initial contact between Palmer and Ziebarth, where Palmer asked Ziebarth if he would mind talking for a moment, was clearly the sort of encounter that implicates no Fourth Amendment interests, as the magistrate reasoned. Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 310-11, 83 L.Ed.2d 165 (1984) (per curiam). “[L]aw enforcement officers do not violate the Fourth" }, { "docid": "23110027", "title": "", "text": "attended an elementary education course conducted in English while incarcerated in a federal penitentiary. The district court found that Pena clearly and unequivocally consented to the search of his vehicle. The court did so even though Pena testified at the suppression hearing that he had no understanding of the English language. Assessment of the credibility of witnesses is the prerogative of the trial court, not an appellate court, which neither sees nor hears the witnesses. United States v. Obregon, 748 F.2d 1371, 1377 (10th Cir.1984). Thus, viewing the evidence in the light most favorable to the government, United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985), we cannot say the trial court was clearly in error in this finding, United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984). III. The first issue on appeal is whether the trial court erred in failing to suppress evidence because Pena’s detention following the initial stop for speeding was unreasonable under the Fourth Amendment and tainted his consent to search. In reviewing denial of a motion to suppress we accept the trial court’s findings of fact unless they are clearly erroneous. Id. Additionally, we must view the evidence on appeal in the light most favorable to the government. Lopez, 777 F.2d at 548. The ultimate de termination of reasonableness, however, is a conclusion of law that we review de novo. United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989). The Fourth Amendment protects against unreasonable searches and seizures. United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.1986). In determining the reasonableness of a search and seizure, the court employs a dual inquiry: 1) whether an officer’s action was justified at its inception; and 2) whether the action was reasonably related in scope to the circumstances that first justified the interference. United States v. Guzman, 864 F.2d 1512, 1518 (10th Cir.1988) (quoting Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968)). This inquiry utilizes an objective analysis of the facts and circumstances. See" }, { "docid": "23537274", "title": "", "text": "State v. Johnson, 71 Wash.2d 239, 427 P.2d 705 (1967). The record shows that although Gay consented to a search of the glove box, Trooper Witt discovered the vial in an open ashtray adjacent to the glove box. (Tr. Ill, 51). Thus there was undisputed evidence that the vial was in plain view when discovered and seized. The vial was found in an open ashtray and in close proximity to the glove box. That which is in plain view is not the product of a search. Objects within the plain view of an officer, who has a right to be in a position to have that view, are subject to seizure. United States v. Marquez, 687 F.2d 328, 331 (10th Cir.1982); see also Bretti v. Wainwright, 439 F.2d 1042, 1046 (5th Cir.1971), cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971). 2. Search of the contents of Gay’s pockets Defendant Gay also asserts error in the denial of his motion to suppress evidence obtained as a result of his being compelled to empty his pockets — the tin container and statements he made after the vial and the tin container were found. He argues that the officer required him to empty his pockets without a warrant and prior to duly performing the constitutionally required, less intrusive pat-down. Brief of Appellant 16. He says that examination of the contents of his pockets was clearly a search, whether the pockets were emptied by the trooper or by Gay himself under the compulsion of the circumstances, citing United States v. DiGiacomo, 579 F.2d 1211 (10th Cir.1978). Brief of Appellant 17. While the trial judge ruled that there was con scious knowledge and consent to look in the glove compartment “or in the can or tin” (Tr. III, 16), we instead uphold the trial judge on the ground that the search was incident to a lawful arrest. DiGiacomo does hold that examination of the detainee’s pocket contents is a search, whether the pocket is emptied by the officer or the detainee under the compulsion of the circumstances. Id. at 1215. Here," }, { "docid": "23361337", "title": "", "text": "prejudicial’ at least as it approaches one year.”); Dirden, 38 F.3d at 1138 (seven-and-one-half-month delay between arraignment and trial not “presumptively prejudicial”); United States v. Kalady, 941 F.2d 1090, 1095-96 (10th Cir.1991) (eight-month delay between indictment and trial nonprejudieial); United States v. Bagster, 915 F.2d 607, 611 (10th Cir.1990) (delay of thirty months insufficient to trigger Barker analysis). But see Gomez, 67 F.3d at 1521 (twelve-and-one-half-month delay triggered Barker analysis); Perez v. Sullivan, 793 F.2d 249, 255 (10th Cir.1986) (delay of fifteen months triggered Barker analysis). In any event, given that the reason for the delay was brought about by Mr. Lugo’s motion to suppress, plus the fact that the right to a speedy trial was never asserted and there has been no showing of prejudice, we conclude that there has been no violation of Mr. Lugo’s Sixth Amendment right to a speedy trial. B. Denial of Mr. Lugo’s Motion to Suppress Mr. Lugo contends that the district court erred by denying his motion to suppress evidence seized during a warrantless search of the vehicle he was driving. After conducting a suppression hearing, the district court determined that the cocaine found during the search of the vehicle was seized pursuant to a valid automobile search incident to arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). As an alternative basis for its ultimate determination of reasonableness, the district court determined that the search was valid because the cocaine would have been inevitably discovered during a lawful inventory search. See United States v. Haro-Salcedo, 107 F.3d 769, 772 (10th Cir.1997). Because we agree with the district court’s conclusion that the search was proper under the standards set forth in Belton, we need not address the court’s alternative basis for its determination. In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, and accept the district court’s factual findings unless they are clearly erroneous. See United States v. Lacey, 86 F.3d 956, 971 (10th Cir.1996). However, the ultimate determination of reasonableness under the Fourth" }, { "docid": "23210921", "title": "", "text": "or, alternatively, Trooper Heim had a reasonable, articulable suspicion justifying the brief detention to ask about narcotics; (3) Mr. Anderson’s consent to search the vehicle was voluntary and, by the time Mr. Anderson attempted to withdraw his consent, the trooper had developed probable cause to search the vehicle’s gas tank and arrest Mr. Anderson; and (4) Mr. Anderson’s discovery requests for information relating to the normal practices of Trooper Heim and his superiors were properly denied as moot. United States v. Anderson, 915 F.Supp. 1146 (D.Kan.1996). Mr. Anderson argues: (1) the district court clearly erred in holding that Trooper Heim observed Mr. Anderson commit a traffic violation; (2) even assuming the traffic stop was valid, the detention exceeded the scope of the stop; (3) the district court erred in concluding that the encounter became consensual, or, alternatively, that Trooper Heim had a reasonable articulable suspicion justifying the brief detention; (4) the court erred in concluding that Mr. Anderson’s consent was voluntary or, if voluntary, the court erred in concluding that the actual search did not exceed the scope of the consent given; (5) the warrantless search of the vehicle’s gas tank, after impoundment, was unconstitutional; and (6) the denial of Mr. Anderson’s request to discover the practices of Trooper Heim and his superior officers was a denial of Mr. Anderson’s equal protection rights. DISCUSSION When reviewing the denial of a motion to suppress evidence, we view the evidence in the light most favorable to the government and the district court’s findings, and we review the district court’s factual findings only for clear error. United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997); see also United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (en banc), cert. denied, — U.S.-, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). We review de novo the ultimate determination of reasonableness under the Fourth Amendment. United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir.1997). Furthermore, “ ‘the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge.’" }, { "docid": "7811175", "title": "", "text": "entered a conditional guilty plea reserving the right to seek appellate review of the district court’s denial of his motion to suppress. On appeal, Johnson contends that the trial court erred in (1) failing to suppress the evidence because the seizure of Johnson and his vehicle violated the fourth amendment, and (2) failing to suppress the evidence because the duration and scope of his detention and that of his vehicle exceeded the constitutional limits applicable to checkpoints. I. Johnson contends that the trial court erred in failing to suppress the evidence “because the seizure of the defendant and his vehicle” violated the Fourth Amendment. Johnson quotes from United States v. Martinez-Fuerte, 428 U.S. 543, 557-58, 567, 96 S.Ct. 3074, 3082-83, 3096, 49 L.Ed.2d 1116 (1976) for the propositions that: routine checkpoint stops involve only a brief detention of travelers during which all that is required of the vehicle’s occupants is a response to a question or two and possibly the production of a document evidencing a right to be in the United States; neither the vehicle nor its occupants are to be searched and visual inspection of the vehicle is limited to what can be seen without a search; and, checkpoint searches are constitutional only if justified by consent or probable cause to search. Specifically, counsel for Johnson contended at oral argument that Customs agents are authorized only to make limited inquiries at checkpoint stops relative to citizenship and that they are not authorized to inquire about the ownership of a vehicle which is driven into the checkpoint. We reject this contention. The government responds that the denial of a motion to suppress must be upheld unless clearly erroneous and that the evidence must be viewed in the light most favorable to the government. See United States v. Cooper, 738 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984); United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984). Border agents may question occupants of a vehicle concerning their citizenship and to explain suspicious behavior. In United States v. Espinosa, 782 F.2d" }, { "docid": "23537277", "title": "", "text": "probability of drugs. Gay had given no other reason why he would be acting as he was. (Tr. III, 33). In light of these circumstances and the vial that had been discovered in the ashtray, there were clear grounds for arrest. Further, Trooper Crandall said that at this time Gay was not free to leave, although he was not formally arrested until later. (Tr. III, 33). Thus, without consideration of the tin produced from Gay’s pocket and statements after it was observed, in effect Gay was already apprehended. Even if the removal of the items from Gay’s pockets were not made with consent, these items were the product of a search that was incident to an arrest which “followed quickly on the heels of the challenged search.” Rawlings v. Kentucky, 448 U.S. at 111, 100 S.Ct. at 2564. We hold that the challenge to the statements and items produced from the pockets of defendant Gay is without merit. 3. Search of the trunk The trunk and its contents were searched pursuant to a warrant. Gay contends that the warrant was issued without probable cause. He makes this contention assuming the validity of his motions to suppress his statements and the evidence seized, arguing further that the remaining allegations in the affidavit for the search warrant were insufficient to show probable cause for the search of the trunk. Brief of Appellant 18. Since we affirm the trial court’s denial of the motions to suppress, Gay’s contention as to the lack of probable cause sufficient for the issuance of a warrant is without merit. It is clear that the affidavit viewed as a whole provided a substantial basis for a finding of probable cause. See Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085,. 80 L.Ed.2d 721, 35 Crim.L.Rep. 4044 (1984) (per curiam). B. The Fifth Amendment Gay further contends that the trial court erred in failing to suppress two inculpatory statements made by him to the troopers before the latter informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The safeguards" }, { "docid": "9894169", "title": "", "text": "Agent Lowry arrested Butler when he reached the third residence. The authorities seized the jewelry box, which was on the front seat of Butler’s pick-up truck. The jewelry box had been taken out of its mailing package. At the Hominy Police Department, the authorities searched the jewelry box and found that the the hashish was still under the false bottom of the jewelry box and that the jewelry and letter were missing. During questioning, Butler admitted that while he was stationed with the United States Armed Forces in West Germany he discussed smuggling contraband into the United States following his discharge from the Armed Forces. At trial, Butler admitted part of the prior discussion involving smuggling, but he denied that the conversation proceeded any further and he denied knowing that the jewelry box contained hashish. II. While Butler concedes that the search and seizure of the jewelry box at the Dallas/Fort Worth Airport was valid under the “border exception,” see United States v. Ramsey, 431 U.S. 606, 616-22, 97 S.Ct. 1972, 1978-82, 52 L.Ed.2d 617 (1977), he argues that the fourth amendment, see U.S. Const, amend. IV, to the U.S. Constitution barred the second search and seizure of the jewelry box following his arrest. Butler contends that the magistrate erred by denying his pre-trial motion to suppress evidence from the second search. We disagree. When we review a denial of a motion to suppress, we accept the trial court’s findings of fact unless clearly erroneous. United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984). The ultimate determination of reasonableness under the fourth amendment is a conclusion of law, United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989), which we review de novo, In re RutiSweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988). The fourth amendment bars “unreasonable searches and seizures.” U.S. Const, amend. IV. As a general rule, a search and seizure becomes reasonable only if it is conducted pursuant to a valid search warrant. See New York v. Belton, 453 U.S. 454, 457, 101 S.Ct." }, { "docid": "22997534", "title": "", "text": "Consent to search is voluntary if it is not the product of duress or coercion, express or implied. Id. at 227 [93 S.Ct. at 2047]. This court has set forth the requirements necessary to establish voluntary consent. “(1) There must be clear and positive testimony that consent was ‘unequivocable and specific’ and ‘freely and intelligently’ given; (2) the Government must prove consent was given without duress or coercion, express or implied; and (3) the courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and there must be convincing evidence that such rights were waived.” United States v. Abbott, 546 F.2d 883, 885 (10th Cir.1977). See also United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir.1985). Ultimately, the determination of “voluntariness” for consent cases is a question of fact to be determined from the totality of all the circumstances. Schnecklotk v. Bustamonte, 412 U.S. at 227 [93 S.Ct. at 2047]; United States v. Sor-Lokken, 557 F.2d 755, 757 (10th Cir.1977), cert. denied, 434 U.S. 894 [98 S.Ct. 274, 54 L.Ed.2d 181] (1977). In reviewing a denial of a motion to suppress, the trial court’s finding of fact must be accepted by this court unless clearly erroneous, United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.1984), with the evidence viewed in the light most favorable to the district court's finding. United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir. 1984). Agent Teuber asked both Arguello and defendant for permission to search. Both Arguello and defendant were cooperative. Specifically, defendant said: “No problem. Go ahead.” No threat, promise or force was used to obtain the consent. Defendant stood by and watched as Agent Teuber searched the automobile and at no time objected. We hold the district court’s finding that defendant voluntarily consented to the search is not clearly erroneous. Scope of search Defendant’s final contention is that the search exceeded the scope of the consent. Defendant urges that Agent Teuber’s request for permission to “look through” defendant’s automobile was so vague that defendant may not have understood the extent of the search. Whether the search remained within" }, { "docid": "13474229", "title": "", "text": "(quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)), cert. denied, — U.S.-, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991). His argument is that there was no justification for entering his motel room and effectuating the warrantless arrest there and, for that reason, the arrest was illegal. In reviewing the denial of a motion to suppress, “ ‘we must accept the trial court’s findings of fact unless they are clearly erroneous.’” United States v. Carr, 939 F.2d 1442, 1443 (10th Cir.1991) (quoting United States v. Gay, 774 F.2d 368, 375 (10th Cir. 1985)) United States v. Guglielmo, 834 F.2d 866, 868 (10th Cir.1987). Further, “[a] trial court’s determinations which rest upon credibility and reasonable inferences will not be set aside unless clearly erroneous.” United States v. Carr, 939 F.2d at 1448; United States v. Skowronski, 827 F.2d 1414, 1417 (10th Cir.1987); United States v. Fountain, 776 F.2d 878, 879 (10th Cir.1985). We must view the evidence in the light most favorable to the government. United States v. Carr, 939 F.2d at 1443; United States v. Leach, 749 F.2d 592, 600 (10th Cir.1984). ‘“The ultimate determination of reasonableness under the fourth amendment ... is a question of law which we review de novo.’ ” United States v. Ross, 920 F.2d 1530, 1533 (10th Cir.1990) (quoting United States v. Arango, 912 F.2d 441, 444 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991)); see also United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990) (citations omitted); United States v. Carr, 939 F.2d at 1443. A. Warrantless Arrest. Even with probable cause, absent consent or exigent circumstances police officers may not enter a dwelling to make an arrest. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980); United States v. Mendoza-Salgado, 964 F.2d 993, 1010 (10th Cir.1992); United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir.1988). A motel room may be considered a “dwelling” for purposes of the validity of a warrantless arrest. See Hoffa v. United States, 385 U.S. 293, 301," }, { "docid": "23537272", "title": "", "text": "one must know he is giving consent for the consent to be efficacious. See, e.g., United States v. Elrod, 441 F.2d 353, 356 (5th Cir.1971). There is ample support in the record for the trial court’s conclusion that Gay’s consent to search the glove box was valid. It was conceded by the Government that Gay was in an intoxicated state; he staggered and swayed, he used the vehicle to support himself, and his speech was slurred. (Tr. III, 18-23, 40-42). Trooper Crandall conceded that Gay was not in the sort of condition one would want to be in for the making of “very important decisions regarding their life____” (Tr. III, 27). Nonetheless, there are different degrees of intoxication. One can be too intoxicated to operate a motor vehicle, but rational enough to understand requests and to give plausible explanations. See, e.g., United States v. Leland, 376 F.Supp. at 1199. The record shows that Gay was able to answer questions addressed to him by the troopers. He produced his driver’s license upon request. (Tr. III, 41). Gay responded when asked if he had been drinking. (Tr. III, 33). He emptied his pockets upon the request of one of the troopers. (Tr. III, 42). Finally, it is important to note that Gay consented to a search of the glove box which did not contain any incriminating evidence (Tr. III, 43), while he denied access to the trunk which a search later revealed contained 2.4 pounds of cocaine. (Tr. III, 45). We cannot say the trial court was clearly in error in finding the consent was valid. Second, Gay argues that even if the consent were valid, the troopers exceeded the scope of the consent when seizing the glass vial. The scope of a consent search is limited by the breadth of the actual consent itself. See State v. Kouc-oules, 343 A.2d 860, 866 (Me.1974). Consent to search a specific area limits the reasonableness of the search to that area. Any police activity that transcends the actual scope of the consent given encroaches on the Fourth Amendment rights of the suspect. See, e.g.," } ]

[ { "docid": "23218376", "title": "", "text": "were discriminatory. Torre appeals. The district court had jurisdiction over this case under 29 U.S.C. § 623(a) and 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. II. A. Section 623(a)(1) of Title 29 of the United States Code provides that “[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff may demonstrate age discrimination under this portion of the ADEA by either direct or indirect evidence. “ ‘Direct evidence of discrimination would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption.’ ” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.1990), quoting and adding emphasis to Carter v. City of Miami 870 F.2d 578, 581-82 (11th Cir.1989). However, evidence is not direct where the trier of fact must infer the discrimination on the basis of age from an employer’s remarks. Perry v. Prudential-Bache Securities, Inc., 738 F.Supp. 843, 851 (D.N.J.1989), aff'd without opinion, 904 F.2d 696 (3d Cir.), cert. denied, 498 U.S. 958, 111 S.Ct. 386, 112 L.Ed.2d 397 (1990). Torre does not contend that he has presented a direct evidence case of age discrimination. Rather, he urges his claim under the shifting-burden analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Appellant’s Br. at 20. (As we noted in McKenna v. Pacific Rail Service, 32 F.3d 820 (3d Cir.1994), although McDonnell Douglas was itself a race discrimination suit under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, its shifting-burden analysis is applicable to age discrimination claims, as well. McKenna^ 32 F.3d at 825 n. 3.) “Under the familiar McDonnell Douglas shifting-burden analysis applicable to federal employment discrimination cases involving indirect proof of discrimination, the plaintiff bears the burden of proving a relatively simple prima facie case, which the employer must rebut by articulating a" } ]

[ { "docid": "2128302", "title": "", "text": "under Title VII. It reached this conclusion by applying the four-part test elaborated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Under that standard a plaintiff establishes a prima facie case of employment discrimination by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. * * * Adapting the McDonnell Douglas test to the facts of this case, the District Court held that “plaintiff has failed to establish a prima facie case of race discrimination, for the record indicates that even if his supervisory appraisals were free from any improper consideration of his EEO activities, plaintiff would not have been among the best qualified for the positions sought.” In concluding that Smith was not among the most qualified applicants, the District Court accepted the administrative determination that Smith was only “an average employee whose qualifications did not meet those required for the positions he sought.” The court further determined that NAVSEA was under a hiring and promotion freeze at the time of appellant’s application, and that it could therefore not have awarded the position to Smith, who was an outside applicant, even had Smith been rated higher. The court also found that appellant was less qualified than the NASA selectee in terms of experience ; even if ranked one letter grade higher in each evaluative category in the supervisor’s appraisal, he would not have scored as high as the top-ranked candidates. Despite its finding that appellant failed to establish a prima facie case, the District Court seems to have accepted the decision of the Secretary that appellant’s supervisor had, in the context of his NAVSEA application, issued an evaluation constituting improper reprisal for Smith’s EEO activities. The court therefore concurred that “destruction of the appraisals is the appropriate remedy[.]”" }, { "docid": "23117281", "title": "", "text": "the magistrate judge pointed out the relevance of the external candidate’s American versus foreign medical training under Ohio law: under then-existing state law, a foreign-trained candidate for a medical staff position was required to undergo two years of postdoctoral training in order to be eligible for board examinations. Thus, even if it were noticed by hospital decisionmakers, the statement of the outside consultant does not establish discriminatory animus. Appellant makes one final argument in support of her discrimination claims, but this argument misconstrues the Supreme Court’s most recent elucidation of the McDonnell Douglas/Burdine framework. Appellant contends that under St Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742,125 L.Ed.2d 407 (1993), she can survive summary judgment simply by casting doubt upon Aultman Hospital’s proffered reason for its decision. However, Hicks makes clear that a Title VII plaintiff must offer evidence from which it is possible to “infer the ultimate fact of discrimination.” 509 U.S. at 511, 113 S.Ct. at 2749. The court below found that the evidence produced by Appellant raises no such inference of discrimination. Our independent review of that evidence reveals that the district court’s ruling is fully supported by the record. In sum, we find that Appellant has failed to produce evidence sufficient'to support her subjective belief that she was passed up for the position of Director of Neonatology because of her race, color, or national origin. The limited evidence Appellant has offered simply does not establish that the hospital’s articulated non-discriminatory basis for its decision was pretextual. Therefore, we affirm the district court’s grant of summary judgment to Appellees on all of Appellant’s federal discrimination claims. V. CONCLUSION For the foregoing reasons, we conclude that the district court correctly applied “rule of reason” analysis to Appellant’s federal antitrust claim, and that the district court properly found that Appellant had failed, as a matter of law, to establish her federal discrimination claims. Accordingly, the district court’s grant of summary judgment to Appellees on all federal claims is hereby AFFIRMED. . The other Plaintiff-Appellant in this action, Canton Neonatology, Inc., is Dr. Betkerur's medical corporation. We" }, { "docid": "882344", "title": "", "text": "supervisory experience, and had had both personal and professional difficulties with Ludke. II The district court, after making detailed findings of fact, entered judgment for the defendant on the ground that plaintiff failed to present a prima facie case of racial discrimination. Pointing out that the Su preme Court requires a plaintiff to prove “that the defendant engaged in actions from which it can be inferred that it is more likely than not that such actions were based on one or more discriminatory criteria forbidden by Title VII of the Civil Rights Act,” Daye v. Califano, supra, slip op. at 10-11; J.A. 14-15, the court held that plaintiff-appellant failed to meet this standard because “[t]here is no evidence from which it can be inferred that it was more likely than not that racial considerations were involved[.]” Id. at 11-12; J.A. 15-16. Daye appeals from this judgment, arguing that as a matter of law, she met the requirements for a prima facie case articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Appellant ‘contends that she need not show evidence of impermissible racial considerations to present a prima facie case; rather, a claimant need only meet the specific burdens set out in McDonnell Douglas: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Once this burden has been met, appellant avers, the court must infer that, more likely than not, racial discrimination exists. At that point, the burden shifts to the defendant to disprove that inference. In this case, appellant maintains, the criteria established in McDonnell Douglas have been met. Therefore, the trial judge should have evaluated not whether Daye presented independent evidence of impermissible racial considerations, but rather whether the appellee’s evidence of the" }, { "docid": "3394460", "title": "", "text": "case of discrimination, Adams had to show that: (1) he belongs to a protected class; (2) he suffered an adverse employment action; (3) at the time of the adverse action, he was performing his job at a level that met his employer’s legitimate expectations and was qualified for the promotion; and (4) he was rejected under circumstances giving rise to an inference of unlawful discrimination. Taylor v. Va. Union Univ., 193 F.3d 219, 230 (4th Cir.1999), abrogated on other grounds as recognized by Hill, 354 F.3d at 284. “If a prima facie case is presented, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Hill, 354 F.3d at 285. If the employer meets that burden of production, “the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer’s stated reasons were not its true reasons, but were a pretext for discrimination.” Id. (internal quotation marks and citations omitted). The district court found, and the Defendants do not contest, that Adams met the first two McDonnell-Douglas prongs. The district court assumed without deciding that Adams also satisfied the third prong and was qualified for promotion to full professor. Although the Defendants do contest this point, we will also assume Adams was qualified for promotion because the last McDonnell-Douglas prong is dispositive of Adams’ claim. The district court did not err in concluding Adams failed to satisfy the fourth prong of establishing his prima facie ease — that he was denied a promotion under circumstances giving rise to an inference of unlawful discrimination. Adams contends such an inference arises from the fact that “he is the only Christian conservative in his Department” and “the only professor in the past twenty-five years to be denied the rank of full professor at the Department level with teaching awards and ten or more refereed publications on his application.” (Appellant’s Opening Br. 66.) As the district court observed, this argument fails in several respects. Although Adams contends he is the only “conservative Christian,” his Title VII claim rests on evidence of" }, { "docid": "22083092", "title": "", "text": "held that, at summary judgment, a plaintiffs “self-assessment of his performance is relevant” in satisfying his minimal burden of showing qualification at the initial, prima facie case, stage of the McDonnell Douglas burden-shifting rationale. See Aragon v. Repub. Silver State Disposal, 292 F.3d 654, 660 (9th Cir.2002). Lyons and Tate allege that they have obtained experience, through their extended service at NADNI, performing many of the functions required by the Deputy Planning Manager and Program Manager positions, including the supervision of other employees. While we do not rely on this evidence alone, we note it as relevant in combination with the other circumstantial evidence of qualification. We conclude based on this evidence that appellants Lyons and Tate have successfully raised a genuine dispute of fact as to whether they were sufficiently qualified for the Program Manager and Deputy Planning Manager positions. The district court’s decision with regard to the remaining appellants’ claims is affirmed, because the evidence regarding their employment experience fails to raise an inference that they were qualified for these positions. The burden now shifts to the employer to offer a legitimate nondiscriminatory reason for rejecting Lyons and Tate for promotion. Appellee contends that the employees who received the disputed positions were previously GS-13s and were simply reclassified to these positions, without promotion, as part of a personnel reorganization at NADNI. The reason satisfies the employer’s burden of production, requiring appellants to raise, a genuine issue of fact as to whether the proffered reason is merely a pretext for discrimination. In rebuttal, appellants have produced background evidence that the employer had previously maintained a discriminatory system of detail assignments that disadvantaged black employees by denying them work experience that would have facilitated their promotion to positions above the GS-12 level. First, appellants have produced statistical evidence that the employer’s policies steadily removed African-American employees from GS-13 positions, resulting in their total removal from such positions in the year directly proceeding the challenged promotion decisions. See McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. 1817 (indicating that “statistics as to [the employer’s] employment policy and practice may be helpful" }, { "docid": "22336672", "title": "", "text": "McDonnell Douglas prong “'requiring proof of qualification.’ ” Young v. General Foods Corp., 840 F.2d 825, 830 n. 3 (11th Cir.1988) (quoting Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n. 2 (11th Cir.1987)). We have explained that the “ ‘reason for this modification [of McDonnell Douglas] is that in cases where a plaintiff has held a position for a significant period of time, qualification for that position sufficient to satisfy the test of a prima facie case can be inferred.’ ” Young, 840 F.2d at 830 n. 3 (quoting Rosenfield, 827 F.2d at 1495 n. 2). We also have unambiguously held that allegations of poor performance against plaintiffs discharged from long-held positions may be properly considered, only after a prima facie case has been established, when a court evaluates the pretextual nature of an employer’s proffered nondiscriminatory .reasons for termination. See Clark, 990 F.2d at 1227 (holding that evidence of employee’s performance reprimands does not establish that employee was unqualified, but may indicate company was legitimately concerned about employee’s performance); Young, 840 F.2d at 830 n. 3 (same). The district court therefore erred in concluding that Appellants were not “qualified” based on Fleming’s allegations of poor performance. B. Pretext Having concluded that Appellants met their prima facie burdens, we turn to the remaining issue of pretext. Once a prima facie case is established, a defendant must proffer legitimate, nondiscriminatory reasons for its employment decision. If such reasons are identified, a plaintiff then bears the ultimate burden of proving them to be a pretext for age discrimination. See Turlington, 135 F.3d at 1432. We have repeatedly and emphatically held that a defendant may terminate an employee for a good or bad reason without violating federal law. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991). We are not in the business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984). In this case, Fleming clearly offered legitimate, nondiscriminatory" }, { "docid": "22083090", "title": "", "text": "for positions that were awarded without a competitive application process, it would be unreasonable to require a plaintiff to present direct evidence of the actual job qualifications as part of his prima facie case. See Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir.1996) (“It would be ironic ... if a victim of discrimination were unable to vindicate her rights because she had the peculiar misfortune of being discriminated against in a way that necessarily prevented her from making her prima facie case.”). In such a circumstance, a plaintiff may satisfy the second prong of McDonnell Douglas by providing circumstantial evidence of his qualification for the position. For the purpose of establishing a prima facie case, the plaintiff is not restricted to providing the bare minimum of evidence required by the McDonnell Douglas test, but may rely also on other circumstantial evidence that tends to raise an inference of discrimination. See Wallis, 26 F.3d at 889 (“In offering a prima facie case, of course, a plaintiff may present evidence going far beyond the minimum requirements.”); see also McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817 (stating that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations”); Cordova, 124 F.3d at 1148 (stating that the McDonnell Douglas test provides “[o]ne way” to raise an inference of discrimination). Appellants Lyons and Tate have demonstrated, as circumstantial evidence of their qualification, that they each held the position of Program Manager at NADNI prior to the 1991 reorganization. Appellee argues that the Program Manager position in 1991 differed materially from the position in 1996 because the latter required supervisory skills and a rating of GS-13. However, appellee has not explained how an employee’s GS rating is relevant to his promotability; in fact, by conceding appellants’ qualifications to apply for GS-13 positions in 1997, when no appellant held that rating, appellee undermines his own arguments with regard to the 1996 positions. In addition, we have recently" }, { "docid": "16135626", "title": "", "text": "challenges the District Court’s finding that he failed to rebut the Government’s legitimate, nondiscriminato ry reason for not selecting him-that Uhl-mann was more qualified. We analyze this case under the familiar McDonnell Douglas test. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case, Appellant must first show that (1) he is a member of a protected class; (2) he applied for and was qualified for an available position; and (3) despite his qualifications he was rejected. Id. at 802, 93 S.Ct. at 1824. Furthermore, Appellant must at least establish that his rejection was not based on “the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.” Morgan v. Federal Home Loan Mortgage, 328 F.3d 647, 651 (D.C.Cir.2003). If the plaintiff establishes his prima fa-cie case, the defendant then bears the burden of producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. Id. If the defendant produces such evidence, McDonnell Douglas, “with its presumptions and burdens disappears and the sole remaining 'issue is discrimination vel non.” Id. The District Court found the Government’s nondiscriminatory reason- for hiring Uhlmann over Stewart - that Uhlmann had more managerial experience - persuasive. This, the District Court noted, shifted the burden back to Stewart to provide sufficient evidence such that a jury could find this “proffered reason was a pretext for discrimination.” Paquin v. National Mortgage Ass’n, 119 F.3d 23, 27-28 (D.C.Cir.1997). The District • Court held that appellant offered no evidence to rebut the Government’s legitimate, nondiscriminatory reason for selecting Uhlmann. On appeal, the Government maintains that position. Stewart, on the other hand, argues that he is so much more qualified than Uhlmann that a jury could reasonably determine that relying on Uhlmann’s qualifications was a pretext for discrimination. Under the liberal requirements for establishing a prima facie case, Appellant has met the burden of McDonnell Douglas only as to" }, { "docid": "22083081", "title": "", "text": "any of the foregoing evidence. However, this evidence is relevant as background and may be considered by the trier of fact in assessing the defendant’s liability for plaintiffs’ denials of promotion in 1996 and 1997. Appellants may not offer this evidence on the theory that past acts of discrimination, for which legal action is now time-barred (e.g., discriminatory assignment of details), constitute a current violation simply because they continue to have a present effect. Consistent with the Supreme Court’s ruling in Evans, appellants may not sustain a cause of action for relief from present injury caused by time-barred acts of discrimination. See Evans, 431 U.S. at 558, 97 S.Ct. 1885. However, appellants may offer the statistical evidence of NADNI’s elimination of African-American employees from GS-13 positions, as well as evidence of the employer’s violation of departmental policy in the course of maintaining white employees for excessively long periods of time in favorable detail positions, as indirect proof of the employer’s intent to discriminate. This evidence may also be offered for its probative value in assessing whether the employer’s justifications for its present conduct lack credibility. C. Appellants’ failure-to-promote claims To establish a prima facie case of disparate treatment under Title VII, a plaintiff must provide evidence that “give[s] rise to an inference of unlawful discrimination.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.1997). Absent direct evidence of discrimination, a Title VII plaintiff may prove his case through circumstantial evidence, following the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Supreme Court held in McDonnell Douglas that the plaintiff can make out a prima facie case of discrimination by showing that (1) he belongs to a statutorily protected class, (2) he applied for and was qualified for an available position, (3) he was rejected despite his qualifications, and (4) after the rejection, the position remained available and the employer continued to review applicants possessing comparable qualifications. Id. at 802, 93 S.Ct. 1817. “The burden of establishing a" }, { "docid": "22448209", "title": "", "text": "in violation of Title VII. 42 U.S.C. §§ 2000e-2000e(17). Claiming that the district court applied an erroneous legal standard by “pigeonholing” the plaintiffs into the familiar burden-shifting framework of McDonnell Douglas and by forcing them to prove “better qualifications” as part of their prima facie case, these plaintiffs now appeal. In order to overcome a motion for summary judgment on a Title VII discrimination claim, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir.2000); Shackelford v. Deloitte & Touche, 190 F.3d 398, 404 (5th Cir.1999). A prima facie case of discrimination in a failure to promote or train ease consists of four elements: (1) the employee is a member of the protected class; (2) he sought and was qualified for the position; (3) he was rejected for the position; (4) the employer continued to seek applicants with the plaintiffs qualifications. Haynes, 207 F.3d at 300. The prima facie case, once established, raises an inference of intentional discrimination, and the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the defendant satisfies this burden, the plaintiff must prove that the proffered reasons are pretextual. Id. Once a Title VII claim reaches this pretext stage, “the only question on summary judgment is whether there is a conflict in substantial evidence to create a jury question regarding discrimination.” Id. A. The “pattern and practice” method of proof The district court properly invoked and applied this McDonnell Douglas burden-shifting scheme in analyzing the appellants’ claims on summary judgment. Appellants, however, object to the application of McDonnell Douglas, arguing instead that the “pattern and practice” mode of proof for racial discrimination claims recognized in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358-59, 97 S.Ct. 1843, 1866-67, 52 L.Ed.2d 396 (1977), should have been applied to their claims. A pattern or practice case is not a separate and free-standing" }, { "docid": "18790388", "title": "", "text": "reasons for not hiring (or rehiring) appellant. DISCUSSION Appellant argues that the district court committed reversible error in not considering as direct evidence of discrimination the testimony and prior signed statement of Nina Maudine Goodman a/k/a Maudine Goodman. Because of the reasons discussed below, we agree with appellant, and therefore reverse the judgment of the trial court. A plaintiff bringing a Title VII disparate treatment claim has a more difficult path when he can point to no direct evidence of discrimination. To prevail, he must first establish a prima facie case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1818, 36 L.Ed.2d 668 (1973). He can satisfy this burden by showing: (i) that he belonged to a racial minority, (ii) that he applied for a job for which the employer was seeking applicants, (iii) that despite his qualification he was rejected, and (iv) that after his rejection the position remained open and the employer continued to seek applicants from persons of plaintiffs qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. To meet this prima facie case of discrimination, the defendant must articulate, but need not prove, legitimate, nondiscriminatory reasons for not hiring plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The plaintiff then carries the burden of proving that the articulated reasons were mere pretext. Id. at 256, 101 S.Ct. at 1095. If plaintiff falls short in carrying this burden, so too falls his Title VII claim. Where, however, there is direct evidence of discrimination the McDonnell Douglas analysis is inapplicable. Miles v. M.N.C. Corp., 750 F.2d 867, 875 (11th Cir.1985); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983); Lee v. Russell County Board of Education, 684 F.2d 769, 774 (11th Cir.1982). A defendant presented with direct evidence of discrimination can rebut the presumption that the hiring decision was improperly motivated only by proving by a preponderance of the evidence that the" }, { "docid": "6368704", "title": "", "text": "her qualifications for the position. Def-’s Mem. at 23. In support, the District attaches Hoots’ resume and application, Kennedy’s resume and application, and the selection certificate with an interoffice memorandum. Def.’s Exs. Z-DD. In the interoffice memorandum dated March 3, 2005, Hoffmaster explains the outcome of the paper review for the permanent position and states: It is clear from my review of this documentation that Ms. Jo Hoots is the best-qualified candidate for the position of Program Manager for Directives Development (MSS-340-14). She addressed each ranking factor with specific examples to illustrate her experience, skill and practical application of the required knowledge. The specific examples were of sufficient depth and scope to support a demonstrated ability to perform the responsibilities of the position. Def.’s Ex. DD. Because the District’s proffers satisfy its burden under the McDonnell Douglas framework, the burden shifts back to Kennedy to demonstrate that the District’s proffered nondiscriminatory explanations are a pretext for discrimination. See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1182 (D.C.Cir.1996) (finding the defendant’s statement that “it chose between [two applicants] based solely upon their answers during the interview” sufficient to move on to the third step of the McDonnell Douglas analysis). A plaintiff asserting that an employer’s explanation is pretextual based on comparative qualifications faces a formidable task. “[I]n order to justify an inference of discrimination, the qualifications gap must be great enough to be inherently indicative of discrimination.” Jackson v. Gonzales, 496 F.3d 703, 707 (D.C.Cir.2007) (quoting Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006)). “Even if a court suspects that a job applicant ‘was victimized by [] poor selection procedures’ it may not ‘second-guess an employer’s personnel decision absent demonstrably discriminatory motive.’ ” Fischbach, 86 F.3d at 1183 (quoting Milton v. Weinberger, 696 F.2d 94, 100 (D.C.Cir.1982)). “Short of finding that the employer’s stated reason was indeed a pretext, however—and here one must beware of using 20/20 hindsight—the court must respect the employer’s unfettered discretion to choose among qualified candidates.” Id. (citing Ramey v. Bowsher, 915 F.2d 731, 735 (D.C.Cir.1990)). Here, based upon the evidence before the Court, there" }, { "docid": "22256895", "title": "", "text": "its burden, the presumption of discrimination created by the prima facie case disappears, and the plaintiff is left with the ultimate burden of proving discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511-12, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff may meet its ultimate burden with evidence tending to show that the reason offered by the defendant is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. Evidence demonstrating the falsity of the defendant’s explanation, taken together with the prima facie case, is likely to support an inference of discrimination even without further evidence of defendant’s true motive. Reeves, 530 U.S. at 147-48, 120 S.Ct. at 2108-09. Thus, the plaintiff can survive summary judgment by producing evidence that creates a jury issue as to the employer’s discriminatory animus or the falsity of the employer’s legitimate nondiscriminatory explanation. IV. APPLICATION OF ANALYTICAL FRAMEWORK Appellant urges that the district court erred in finding that he offered no direct evidence of Appellee’s discriminatory motive in terminating him. We agree with the district court. Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption. Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir.1995). Appellant points to the Long Term Leadership Development Plan, which endeavored to “identify ... younger managers ... for promotion to senior management over the next 5+ years, ultimately replacing senior management.” To find that the plan is evidence of age-based animus relevant to Appellant’s termination requires the inference that senior managers were to be fired to make room for younger trainees, rather than being replaced as they retire, change jobs, or are terminated for performance reasons. Appellant contends that the district court erroneously failed to draw this inference in his favor. However, Appellant’s contention is inapposite to the analysis of whether evidence is direct or circumstantial. If an inference is required for the evidence to be probative as to Appellee’s discriminatory animus in firing Appellant, the evidence is circumstantial, not direct. Next, Appellant offers the remarks by stock analysts about “too much grey" }, { "docid": "22083095", "title": "", "text": "of whom had previously held a similar position at the GS-12 level, because it was motivated by discriminatory intent. Based on this evidence, we conclude that Lyons and Tate have successfully rebutted appellee’s proffered legitimate reasons for denying them promotion to the Deputy Planning Manager and Program Manager positions. They may proceed to trial on these claims. 2. 1997 As discussed above, the district court dismissed appellants’ failure-to-promote claims based on their applications for GS-13 positions in 1997 because it held that appellants failed to exhaust their administrative remedies with regard to these claims. Because we reverse that holding, we must address the merits of the appellants’ claims. Appellee does not dispute appellants’ qualifications to occupy any of these positions. Instead, appellee argues that appellants cannot succeed in establishing a pri-ma facie case because two of the five positions for which appellants competed were awarded to African-American applicants. In the alternative, appellee argues that it legitimately denied the appellants’ applications because none of them was the most qualified for any of the available jobs. With regard to appellee’s first argument, proof that the employer filled the sought position with a person not of the plaintiffs protected class is “ ‘neither a sufficient nor a necessary condition’ of proving a Title VII case,” Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 n. 1 (7th Cir.1999) (quoting Carson v. Bethlehem, Steel Corp., 82 F.3d 157, 159 (7th Cir.1996) (per curiam)), and it is not prescribed by the Supreme Court’s original statement of the prima facie test, see McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (stating that plaintiff may satisfy the fourth-prong of the prima facie case by showing “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications”); see also Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (stating that, at trial, the plaintiff “must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination”)." }, { "docid": "22941643", "title": "", "text": "judgment. Under Rule 56(f), a party may apply for a continuance of the proceedings to permit further discovery. Appellant made no such motion. Consequently, we find that the district court did not abuse its discretion in granting Arcata’s motion for summary judgment. Thi-Hawaii v. First Commerce Financial Corporation, 627 F.2d 991, 994 (9th Cir.1980). V. CONCLUSION Appellant has failed to raise genuine issues of fact concerning her claims of intentional hiring discrimination under Title VII or the ADEA. Her Equal Pay Act claim also fails because she did not articulate facts which, if true, would indicate that men were paid more in the same establishment for substantially equal work. Additionally, because appellant did not show that her job and Hamby’s job were “substantially equal,” she cannot succeed in proving a wage discrimination claim under Title VII. We have found no abuse of discretion in the district court’s discovery ruling. The judgment of the district court is AFFIRMED. . In Burdine, the Court noted that McDonnell Douglas should have made it apparent that in the Title VII context, \"prima facie case” is used to denote the establishment of \"a legally mandatory, rebuttable presumption,” rather than to \"describe the plaintiffs burden of producing enough evidence to permit the trier of fact to infer the fact at issue.” In the context of a motion for summary judgment, however, \"pri-ma facie case” does refer to the plaintiffs burden of production. . The disparate treatment model for a prima facie case of discrimination described by the Supreme Court in McDonnell Douglas required the plaintiff to show: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). . The Equal Pay Act, 29 U.S.C. § 206, provides in relevant part: (d)(1) No employer having employees subject to any provisions of this" }, { "docid": "3394461", "title": "", "text": "met the first two McDonnell-Douglas prongs. The district court assumed without deciding that Adams also satisfied the third prong and was qualified for promotion to full professor. Although the Defendants do contest this point, we will also assume Adams was qualified for promotion because the last McDonnell-Douglas prong is dispositive of Adams’ claim. The district court did not err in concluding Adams failed to satisfy the fourth prong of establishing his prima facie ease — that he was denied a promotion under circumstances giving rise to an inference of unlawful discrimination. Adams contends such an inference arises from the fact that “he is the only Christian conservative in his Department” and “the only professor in the past twenty-five years to be denied the rank of full professor at the Department level with teaching awards and ten or more refereed publications on his application.” (Appellant’s Opening Br. 66.) As the district court observed, this argument fails in several respects. Although Adams contends he is the only “conservative Christian,” his Title VII claim rests on evidence of religious discrimination rather than political or social ideology and Adams “forecasts no evidence that he is the [Department's only Christian.” (J.A. 1380.) Furthermore, Adams’ comparison of his qualifications to those of others in the Department cannot, by itself, meet his burden. There must be some additional tie to a religious motive for the decision not to promote him and Adams failed to make that showing. Although some of his writings contained religious content and were considered during the decisionmaking process, that fact, in and of itself, does not give rise to an inference of discrimination. Adams’ conjecture links the two, but nothing more substantial does. But even if we assume that Adams had established a prima facie case, the Defendants satisfied their burden to “articulate a legitimate nondiscriminatory reason for the adverse employment action.” Cf. Hill, 354 F.3d at 285. The Defendants offered numerous legitimate reasons for the decision not to promote Adams, including the small number of peer-reviewed single author publications since Adams’ last promotion. Consequently, even if the burden then shifted back to" }, { "docid": "2128303", "title": "", "text": "among the most qualified applicants, the District Court accepted the administrative determination that Smith was only “an average employee whose qualifications did not meet those required for the positions he sought.” The court further determined that NAVSEA was under a hiring and promotion freeze at the time of appellant’s application, and that it could therefore not have awarded the position to Smith, who was an outside applicant, even had Smith been rated higher. The court also found that appellant was less qualified than the NASA selectee in terms of experience ; even if ranked one letter grade higher in each evaluative category in the supervisor’s appraisal, he would not have scored as high as the top-ranked candidates. Despite its finding that appellant failed to establish a prima facie case, the District Court seems to have accepted the decision of the Secretary that appellant’s supervisor had, in the context of his NAVSEA application, issued an evaluation constituting improper reprisal for Smith’s EEO activities. The court therefore concurred that “destruction of the appraisals is the appropriate remedy[.]” But it declined to award Smith the attorney’s fees routinely granted to “prevailing parties” in Title VII litigation. Although its opinion is not entirely free from ambiguity on this point, the District Court apparently concluded that appellant could not be considered a prevailing party because he had failed to state even a prima facie case of employment discrimination under the four-part test of McDonnell Douglas. This appeal ensued. II. ELEMENTS OF THE PRIMA FACIE CASE UNDER TITLE VII We do not understand appellant to contend in this appeal that he asserted a prima facie case of employment discrimination under the McDonnell Douglas standard. Rather, appellant argues that he stated a cause of action for unlawful reprisal, cognizable under a different standard, on which he was entitled to a decision, and to some form of relief, from the District Court. We believe that appellant did state a cause of action under Title VII, the validity of which was implicitly recognized by both the administrative agency and the District Court in their conclusions that Smith was entitled" }, { "docid": "22083091", "title": "", "text": "minimum requirements.”); see also McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817 (stating that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations”); Cordova, 124 F.3d at 1148 (stating that the McDonnell Douglas test provides “[o]ne way” to raise an inference of discrimination). Appellants Lyons and Tate have demonstrated, as circumstantial evidence of their qualification, that they each held the position of Program Manager at NADNI prior to the 1991 reorganization. Appellee argues that the Program Manager position in 1991 differed materially from the position in 1996 because the latter required supervisory skills and a rating of GS-13. However, appellee has not explained how an employee’s GS rating is relevant to his promotability; in fact, by conceding appellants’ qualifications to apply for GS-13 positions in 1997, when no appellant held that rating, appellee undermines his own arguments with regard to the 1996 positions. In addition, we have recently held that, at summary judgment, a plaintiffs “self-assessment of his performance is relevant” in satisfying his minimal burden of showing qualification at the initial, prima facie case, stage of the McDonnell Douglas burden-shifting rationale. See Aragon v. Repub. Silver State Disposal, 292 F.3d 654, 660 (9th Cir.2002). Lyons and Tate allege that they have obtained experience, through their extended service at NADNI, performing many of the functions required by the Deputy Planning Manager and Program Manager positions, including the supervision of other employees. While we do not rely on this evidence alone, we note it as relevant in combination with the other circumstantial evidence of qualification. We conclude based on this evidence that appellants Lyons and Tate have successfully raised a genuine dispute of fact as to whether they were sufficiently qualified for the Program Manager and Deputy Planning Manager positions. The district court’s decision with regard to the remaining appellants’ claims is affirmed, because the evidence regarding their employment experience fails to raise an inference that they were qualified for these positions. The burden" }, { "docid": "882345", "title": "", "text": "792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Appellant ‘contends that she need not show evidence of impermissible racial considerations to present a prima facie case; rather, a claimant need only meet the specific burdens set out in McDonnell Douglas: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Once this burden has been met, appellant avers, the court must infer that, more likely than not, racial discrimination exists. At that point, the burden shifts to the defendant to disprove that inference. In this case, appellant maintains, the criteria established in McDonnell Douglas have been met. Therefore, the trial judge should have evaluated not whether Daye presented independent evidence of impermissible racial considerations, but rather whether the appellee’s evidence of the lack of such impermissible motivations was sufficient to overcome the presumption raised by the establishment of a prima facie case. Further, appellant claims, the evidence presented by the appellee was insufficient as a matter of law to overcome the inference of racial discrimination. Thus, Daye asks this court to reverse the trial court and enter judgment, with appropriate damages, in her favor. Ill This court outlined the components of a prima facie case under Title VII in its recent decision in Aikens v. United States Postal Service, 642 F.2d 514 (D.C.Cir.1980). Aikens makes clear that “the prima facie case in a suit alleging individual discrimination does not require a showing of discriminatory motive.” Id., at 520. Rather, this court concluded that “[i]n essence, McDonnell Douglas requires an individual bringing suit under Title VII to demonstrate that the alleged discrimination did not result from a lack of qualifications or the absence of a vacancy in the job sought.” Id., at 517. This prima facie case “raises an inference of discrimination,” shifting to the government the burden" }, { "docid": "10081956", "title": "", "text": "direct evidence to establish a prima facie case under Lee. Because Smith elected to establish her prima facie case through circumstantial evidence, the district court properly used the McDonnell Douglas standard in evaluating the OPM’s rebuttal. C. Pretext As noted earlier, McDonnell Douglas establishes a three-step burden of proof se quence to be followed in most disparate treatment cases. Under the third prong of the McDonnell Douglas test, once the plaintiff has established a prima facie ease of discrimination and the defendant has articulated a legitimate, non-discriminatory rationale for its action, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the defendant’s reason is but a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The ultimate issue remains whether the employer has exercised discriminatory intent. Because intentional discrimination is a question of fact, we may reverse the district court’s decision only if its finding is clearly erroneous. See, e.g., Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129-30 (11th Cir.1984). Smith contends that no basis exists for the conclusion that Beck and Ward were better qualified than Smith for the positions in question. In particular, Smith argues that Barshow’s testimony that Beck possessed superior communication skills is belied by Barshow’s 1982 evaluation of Smith, which rated Smith “exceptional” in the category of “communications skills.” According to Smith, based on the facts presented, the district court’s finding that Smith did not prove pretext “simply does not speak the truth and right of the ease.” In Canino v. United States EEOC, 707 F.2d 468 (11th Cir.1983), this court was faced with a situation similar to the one presented here. Canino, a GS-14 employee of the EEOC, applied for three vacant GS-15 positions in various parts of the country. His applications were forwarded to ranking panels and assigned numerical scores. In each case, Canino’s name was among those placed on the Promotion Eligibility Listing (i.e., the “certificate of eligibles”). The scores of the candidates did not appear on the listings; instead, the selecting officials were free to choose any of the" } ]

[ { "docid": "22851114", "title": "", "text": "SELYA, Circuit Judge. This case requires us to determine whether a consumer’s professed lack of comprehension of a notice of right to rescind alone suffices to pave the way for belated rescission under the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667. The district court concluded that a bald assertion of subjective confusion did not trump the plain language of the disputed notice and dismissed the plaintiffs amended complaint. The court then rebuffed the plaintiffs two-pronged endeavor either to obtain reconsideration or to restate her claim. This appeal followed. After careful consideration, we affirm. I. BACKGROUND Because this appeal follows the granting of a motion to dismiss under Fed.R.Civ.P. 12(b)(6), we rehearse the facts as set forth in the plaintiffs amended complaint. See Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.1987). Consistent with the case law, however, we eschew reliance on the pleader’s rhetorical flourishes, including unsupported conclusions and assertions. See id.; see also Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5-6 (1st Cir.2005). In March of 2003, plaintiff-appellant Amy Palmer obtained a debt-consolidation loan, secured by a mortgage on her residence, from defendant-appellee Champion Mortgage. The closing took place on March 28, 2003. The plaintiff executed, then and there, a promissory note, a mortgage, a TILA statement, and a settlement sheet. She left without receiving copies of any of these documents. Several days later, the plaintiff received by mail copies of the closing documents. Included among these papers was a notice of right to cancel (the Notice) — a notification required by the TILA. See 15 U.S.C. § 1635(a). In relevant part, the Notice informed the plaintiff that: You have a legal right under federal law to cancel this transaction, without cost, within three (3) business days from whichever of the following events occurs last: (1) the date of the transaction, which is MARCH 28, 2003; or (date) (2) the date you received your Truth-in-Lending disclosures; or (3) the date you received this notice of your right to cancel. The Notice further provided: “If you cancel by mail or telegram," } ]

[ { "docid": "19121282", "title": "", "text": "MEMORANDUM JOAN N. FEENEY, Bahkruptcy Judge. I. INTRODUCTION The matters before the Court are the Second Amended Adversary Complaint filed by Joseph L. Hart (the “Debtor”) against GMAC Mortgage Corporation (“GMAC”) and Federal National Mortgage Association (“Fannie Mae”) (collectively, the “Defendants”) and GMAC’s objection to confirmation of the Debtor’s First Amended Chapter 13 Plan. The issue presented is whether GMAC and Fannie Mae are liable to the Debtor for damages because of improper attempts to collect the Debtor’s mortgage debt. The Debtor’s Second Amended Adversary Complaint, which was filed on July 1, 1998, contains seven counts as follows: Count I — Breach of Contract; Count II— Violation of Mass. Gen. Laws Ann. Ch. 163, § 60 (West 1991 & Supp.1999); Count III — Violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (West 1998)(“FDCPA”); Count IV — Violation of Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws Ann. Ch. 140D, §§ 1-34 (West 1991 & Supp.1999) (“MCCCDA”); Count V — Violation of the Truth in Lending Act, 15 U.S.C. §§ 1601-1667e (West 1998) (“TILA”); Count VI — Violation of the Automatic Stay; and Count VII — Violation of Massachusetts Consumer Protection Act, Mass. Gen. Laws Ann. Ch. 93A §§ 1-11 (West 1997) (“Chapter 93A”). GMAC and Fannie 'Mae answered the Second Amended Complaint. In accordance with the Court’s pre-trial order, the parties filed a 31-page Joint Pre-Trial Memorandum on November 8,1999. The Court conducted a two-day trial on December 7, 1999 and January 5, 2000 at which four witnesses testified and 55 exhibits were accepted into evidence. At the conclusion of the Debtor’s case, the Defendants moved for a directed verdict. The Court now denies the Defendants’ Motion for a Directed Verdict and makes its findings of fact and conclusions of law in accordance with Fed. R. Bankr.P. 7052. II. FACTS A. The Debtor’s Chapter IS Case The Debtor filed a voluntary Chapter 13 petition on September 1, 1998. On September 16, 1998, he filed Schedules, a Statement of Financial Affairs and a Chapter 13 Plan. On Schedule A-Real Property, he listed an ownership interest in" }, { "docid": "19159933", "title": "", "text": "OPINION BERZON, Circuit Judge: Once again, we address issues arising from Countrywide Financial Corporation’s residential lending business during the period shortly before novel practices by lenders resulted in widespread distress in the housing markets. See, e.g., Balderas v. Countrywide Bank, N.A., 664 F.3d 787 (9th Cir.2011); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir.2011). David Merritt and Salma Merritt (“the Merritts”) sued Countrywide Financial Corporation and various other defendants (collectively “Countrywide” or “CHL”) involved in their residential mortgage, alleging violations of numerous federal statutes. The district court dismissed the claims pleaded, with prejudice. This appeal followed. We consider in this opinion two issues raised by that dismissal: (1) whether the district court properly dismissed the Mer-ritts’ Truth in Lending Act (“TILA”) rescission claim because they did not tender the rescindable value of their loan prior to filing suit or allege ability to tender its value in their complaint; and (2) whether the Merritts’ claims under Section 8 of the Real Estate Settlement Practices Act (“RESPA”) may proceed, including whether the RESPA limitations period, 12 U.S.C. § 2614, may be equitably tolled. Factual & Procedural Background In March 2006, the Merritts took out both an adjustable-rate mortgage and a home equity line of credit (“HELOC”) with Countrywide on a home they purchased in Sunnyvale, California. Initially, the Merritts’ Countrywide agent had told them, “I can pretty much guaranty you that we can get you in your new home for $1800 per month and possibly even as low as $1,500.” Three days before closing, however, the agent told the Merritts that he had completed their loan package and that their monthly payments would be $4,400 a month for the first five years: $3,200 for the mortgage, plus $1,200 for the HELOC. When the Merritts balked, the agent replied that “the market had shifted” since his initial estimates. He told the Merritts that the $4,400 monthly payment was “the lowest that you’ll find anywhere,” and if they did not close right away, they would lose their good-faith deposit. He did not disclose that the $4,400/ month figure was based on" }, { "docid": "19159975", "title": "", "text": "claim upon which relief may be granted, pursuant to Rule 12(b)(6). The dissent suggests we affirm on the basis of Rule 8(a)(2). The enforcement of Rule 8 rests within the district court’s discretion, and defendants do not raise any Rule 8(a)(2) questions before us. Under these circumstances, it would be improper for us to affirm on Rule 8 grounds. See Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir.1969). . We address the Merritts’ other claims, and the parties’ motions for judicial notice, in a memorandum disposition issued concurrently with his opinion. . As is generally true in California, the legal instrument for the Merritts’ home loan was a deed of trust and not, technically speaking, a mortgage. See Siegel v. Am. Savings & Loan Ass’n, 210 Cal.App.3d 953, 258 Cal.Rptr. 746, 747 (1989) (defining a deed of trust); 27 Cal. Jur.3d Deeds of Trust § 1 (2011) (same); Cal. Civ.Code § 2920(b) (distinguishing mortgage from deed of trust for certain purposes under California state law). We refer to the Mer-ritts’ home loan throughout this opinion as a mortgage, because that is how the parties have referred to it in their pleadings and briefs, and the precise financing instrument is not legally material to the issues addressed in this opinion. . Because we are evaluating a district court’s dismissal pursuant to Rule 12(b)(6), we take the facts from the Merritts’ complaint and assume that they are true. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir.2003). . Countrywide had, in the meantime, been acquired by Bank of America. The Merritts’ loan was eventually sold to Wells Fargo. . We refer to the amended complaint throughout simply as \"the complaint.” . Plaintiffs’ TILA claims relate solely to their home-equity line of credit, or \"HELOC.” TILA does not apply to residential mortgages used to finance the initial acquisition or construction of a dwelling. See 15 U.S.C. §§ 1635(e)(1) & 1602(x). Countrywide presents for the first time on appeal the argument that plaintiffs’ HELOC falls within this residential mortgage exception. Because this argument was not previously raised in the" }, { "docid": "19455353", "title": "", "text": "BARRON, Circuit Judge. This case concerns an appeal from the dismissal of a suit that challenges the lawfulness of a 2012 foreclosure sale of a home in Massachusetts. The property at issue formerly belonged to the plaintiffs: Pedro Flores, Esther Yanes-Álvarez, and Rosa Yanes. Their complaint set forth numerous claims alleging, among other things, that the defendants-OneWest Bank, Indymac Mortgage Services, Ocwen Servicing, and the Federal National Mortgage Association-had engaged in unfair and predatory mortgage lending and loan servicing practices and that the foreclosure sale of the property was void. We affirm the District Court's order dismissing all of the claims. I. To set the stage, we recount the following facts as they are recited in the amended complaint. On or about April 6, 2007, the plaintiffs refinanced their home mortgage loan for their home in Everett, Massachusetts. The home mortgage loan was originated by Dynamic Capital Mortgage and secured by a mortgage on the property with Mortgage Electronic Registration Systems Inc. (\"MERS\"), which the mortgage named as mortgagee. In 2008, the plaintiffs were unable to meet their monthly mortgage obligations and eventually defaulted on the mortgage. On April 25, 2012, the plaintiffs applied for a loan modification from Indymac Mortgage Services, a division of OneWest Bank. On May 11, 2012, Indymac denied the plaintiffs' application. OneWest effectuated the foreclosure pursuant to the statutory power of sale. Mass. Gen. Laws ch. 183, § 21. Defendant OneWest purchased the property at the foreclosure sale. More than three years later, on November 15, 2015, the plaintiffs brought this suit in the District Court for the District of Massachusetts. The operative complaint set forth nine claims. The defendants moved to dismiss all of the claims, and the District Court granted the motion. The plaintiffs now appeal the dismissal of eight of the nine claims. Our standard of review for an order granting a motion to dismiss is de novo. Rodi v. S. New England Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004). In performing the review, \"[n]on-conclusory factual allegations in the complaint must ... be treated as true.\" Ocasio-Hernández v. Fortuño-Burset," }, { "docid": "20103801", "title": "", "text": "F.Supp.2d 40 (D.Conn.2010), the Court granted the Defendant’s motion to dismiss without prejudice to filing an amended complaint in compliance with the Court’s order. The Court held that FIR-REA barred any claims that stemmed from WAMU’s pre-failure conduct but would not bar claims based on actions taken by Chase employees after Chase purchased WAMU’s assets. [Dkt. #23]. Since Plaintiffs complaint failed to clearly delineate timing and the responsible parties for the alleged misdeeds, the Court permitted Caires to amend the complaint to “limits its causes of actions to allegations regarding the servicing of the Plaintiffs loan agreement that are not subject to the FDIC’s claim exhaustion requirements.” [/<£]. On October 14, 2010, Caires filed an amended complaint asserting claims for fraud in the administration of the loan, equitable estoppel, and CUTPA. [Dkt. # 25]. On November 19, 2010, Chase filed a motion to dismiss the amended complaint based on FIRREA and failure to state a claim. [Dkt. # 36]. On June 23, 2011, the Court held a status conference with the parties. After the conference, the Court struck Plaintiffs amended complaint in its entirety pursuant to Fed.R.Civ.P. 12(f) as Plaintiff failed to state claims with specificity and consistency with the actual facts which form the basis of those claims as admitted at the Parties’ 6/23/2011 status conference and permitted the Plaintiff to file a second amended complaint. [Dkt. # 64], On July 7, 2011, Caires filed his second amended complaint. [Dkt. # 67]. On September 28, 2011, Chase moved to dismiss the second amended complaint which is pending before the Court. Factual Allegations The following facts are taken from Caires’s second amended complaint. On December 11, 2006, Caires purchased 634 North Street, Greenwich, CT and entered into an Adjustable Rate Purchase Money Mortgage and a Home Equity Line of Credit (“HELOC”) with Washington Mutual Bank (“WAMU”) with regard to this property. [Dkt. # 67, Second Amended Complaint (“SAC”) at ¶¶ 8, 43], In August of 2007, Caires entered into a Residential Construction/Permanent Loan agreement with WAMU for $5.5 million. [Id. at ¶ 44], Plaintiff alleges that the loan combined a" }, { "docid": "8948640", "title": "", "text": "OPINION AND ORDER KENNETH M. KARAS, District Judge. Darrick and Yolanda Grimes (“Plaintiffs”), proceeding pro se, bring this action against Fremont General Corporation (“FGC”) and Fremont Investment and Loan (“FIL”) (collectively, “Fremont”), WCS Lending LLC (“WCS”), Jonathan Tanenbaum (“Tanenbaum”), Nadene McBean (“McBean”), U.S. Bank, National Association, as Trustee for Master Asset Backed Securities Trust 2006-FRE-l (“U.S. Bank”), and 3 Day Appraisal Services (collectively, “Defendants”), for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.; the Home Ownership and Equity Protection Act (“HOEPA”), 15 U.S.C. § 1639; the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq.; the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq.; the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691, et seq.; the Civil Rights Act, specifically 42 U.S.C. §§ 1981, 1982, & 1985(3); and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962; as well as fifteen state law claims. Fremont, WCS, and U.S. Bank (collectively, the “Moving Defendants”) have each moved to dismiss all of Plaintiffs’ claims pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, the motions to dismiss are granted in part. I. Background The Amended Complaint is 161 pages long and contains 722 paragraphs. It sometimes contains conflicting dates and descriptions of events, and Plaintiffs are not always clear about which Defendants purportedly took which actions. However, for purposes of deciding the instant motions to dismiss, the Court accepts as true the allegations contained in Plaintiffs’ Amended Complaint, described below, and construes them in the light most favorable to Plaintiffs. A. Factual Background Plaintiffs Darrick and Yolanda Grimes (“Plaintiffs”) are African-American owners of a house located at 23 Stacy Lee Drive, in Newburgh, New York (the “Newburgh home”). (Am. Compl. ¶¶ 17-18.) At the time of the transaction at issue, Plaintiffs were employed as legal assistants, earning a combined $103,000 per year. (Id. ¶ 61.) According to Plaintiffs, Defendant FGC is a financial services holding company that engages in real estate lending operations through its wholly owned subsidiary, Defendant FIL, “a wholesale lender [that] obtains] all of" }, { "docid": "16857071", "title": "", "text": "¡MEMORANDUM JOAN N. FEENEY, Bankruptcy Judge. I. INTRODUCTION The matters before the Court are the Motion for Partial Summary Judgment filed by the Plaintiff, Pearl Maxwell (“Maxwell” or the “Debtor”); and the Opposition to Debtor’s Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment filed by the Defendant, Fairbanks Capital Corporation (“Fairbanks”). The Court heard the Motion for Partial Summary Judgment and the Opposition and Cross-Motion on May 9, 2002 and took the matters under advisement. The Court now makes its findings of fact and conclusions of law in accordance with Fed. R. Bankr.P. 7052. The Debtor filed an adversary complaint against Fairbanks on November 29, 2000. The Debtor formulated nine counts in her Complaint as follows: Count A: Violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (West 1998) (“FDCPA”); Count B: Violation of the Truth in Lending Act, 15 U.S.C. §§ 1601—1667e (West 1998)(“TILA”); Count C: Violation of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617 (West 2002) (“RESPA”); Count D: Violation of the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws Ann. Ch. 140D, §§ 1-34 (West 1991 & Supp.2001)(“MCCCDA”); Count E: Violation of Mass Gen. Laws Ch. 183, § 60 (West 1991 & Supp.2001); Count F: Violation of Mass. Gen. Laws Ch. 183, § 63 (West 1991 & Supp.2001); Count G: Violation of the Massachusetts Consumer Protection Act, Mass. Gen. Laws Ann. Ch. 93A, §§ 1-11 (West 1997)(“Chapter 93A”); Count H: Unconscionability; and Count I: Breach of Contract. In moving for Partial Summary Judgment, the Debtor sought judgment only with respect to Counts A, C, D, and H. Specifically, in her Motion for Partial Summary Judgment, the Debtor stated that she is entitled to judgment on Count A as a result of Fairbanks’s conduct in “demanding payments due that were in fact not due at the time of the demand and by attempting to collect monies which are not expressly authorized by the agreement or law;” that she is entitled to judgment on Count C because of Fairbanks’s conduct in “failing to respond to two qualified written requests for" }, { "docid": "12162920", "title": "", "text": "Hartford allowed the declaratory judgment to become final and paid Robinson’s first-party claim. Approximately eight months later, the other shoe dropped: Robinson again sued Hartford in the state court. This time, Robinson alleged that Hartford’s stonewalling constituted an unfair and deceptive trade practice in violation of Mass. Gen. Laws ch. 93A, § 11, and prayed for treble damages and attorneys’ fees. Hartford removed the case to the federal district court based on diversity of citizenship and the existence of a controversy in the requi site amount. See 28 U.S.C. §§ 1332(a), 1441. Hartford’s next step was to move for dismissal under Federal Rule of Civil Procedure 12(b)(6) on the ground that the chapter 93A suit was foreclosed by principles of res judicata. Robinson opposed the motion, arguing among other things that the Massachusetts courts would not give preclusive effect as to claims not actually litigated in a previous declaratory judgment action. The district court sided with Hartford and dismissed the action. See Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co. (Robinson II), 533 F.Supp.2d 218, 222 (D.Mass.2008). This timely appeal followed. II. PERTINENT LEGAL PRINCIPLES We begin with a préeis of some pertinent legal principles. Our standard of review is familiar: we evaluate a dismissal for failure to state a claim de novo, accepting all well-pleaded facts delineated in the complaint and drawing all reasonable inferences therefrom in favor of the party contesting dismissal. Palmer v. Champion Mortg., 465 F.3d 24, 27 (1st Cir.2006); Jorge v. Rumsfeld, 404 F.3d 556, 559 (1st Cir.2005). The motion will be granted unless the facts, evaluated in that plaintiff-friendly manner, contain enough meat to support a reasonable expectation that an actionable claim may exist. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); Morales-Tañón v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir.2008). In passing upon a motion to dismiss for failure to state a claim, the reviewing court’s focus on the well-pleaded facts is more expansive than might first be thought. Within that rubric, the court may consider matters fairly incorporated within the" }, { "docid": "22837388", "title": "", "text": "unless they can see the lips of others moving in unison. See Morales v. Trans World Airlines, Inc., 504 U. S. 374, 385, n. 2 (1992) (“[Legislative history need not confirm the details of changes in the law effected by statutory language before we will interpret that language according to its natural meaning”). In its fifth and final step, the Court asserts that it would be “anomalous” for liability to be “uncapped by the [$1,000] limit” when real property secures an open-end loan but capped by the $2,000 limit when it secures a closed-end loan, and that it would be “passing strange” for damages to be “substantially lower” under clause (iii) than under clause (i). Ante, at 63, and n. 10. The lack of a $1,000 limit does not, of course, make liability under clause (i) limitless. In all cases under clause (i), the damages are twice the finance charge, and the 1-year statute of limitations, 15 U. S. C. § 1640(e), naturally limits the amount of damages that can be sought. More importantly, Congress would have expected the amounts financed (and thus the finance charges) under clause (i) to be generally much lower than those under clause (iii). In eases (like this one) where loans are not secured by real property, the amount financed can be no greater than $25,000. § 1603(3). Where loans are secured by real property, clause (iii) includes both first mortgages and second mortgages (or home equity loans), which are far more common and significantly larger than the open-end home equity lines of credit (HELOCs) that are still covered by clause (i). In 1994, 64% of home-owning households had first or second mortgages, but only 7% had HELOCs with outstanding balances. Survey Research Center, Univ. of Michigan, National Survey of Home Equity Loans 25 (Oct. 1998) (Table 1) (hereinafter National Survey). The mean first mortgage balance was $66,884; the mean second mortgage balance was $16,199; and the mean HELOC outstanding balance was $18,459. Ibid. Assuming a 10% interest rate (which would have been higher than a typical HELOC in 1994, see G. Can-ner & C." }, { "docid": "19159976", "title": "", "text": "throughout this opinion as a mortgage, because that is how the parties have referred to it in their pleadings and briefs, and the precise financing instrument is not legally material to the issues addressed in this opinion. . Because we are evaluating a district court’s dismissal pursuant to Rule 12(b)(6), we take the facts from the Merritts’ complaint and assume that they are true. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir.2003). . Countrywide had, in the meantime, been acquired by Bank of America. The Merritts’ loan was eventually sold to Wells Fargo. . We refer to the amended complaint throughout simply as \"the complaint.” . Plaintiffs’ TILA claims relate solely to their home-equity line of credit, or \"HELOC.” TILA does not apply to residential mortgages used to finance the initial acquisition or construction of a dwelling. See 15 U.S.C. §§ 1635(e)(1) & 1602(x). Countrywide presents for the first time on appeal the argument that plaintiffs’ HELOC falls within this residential mortgage exception. Because this argument was not previously raised in the district court, we do not address it here. . Indeed, even in a common-law equitable rescission action where the plaintiff is required to tender first, the plaintiff need not necessarily plead ability to tender in the complaint. See 1 Dan B. Dobbs, Law of Remedies: Damages — Equity—Restitution § 4.8, at 463 (2d ed.1993). . The Eleventh Circuit has reserved whether a third-party markup theory might be viable under RESPA Section 8(b). See Sosa, 348 F.3d at 982-84. . There is one distinction. The TILA limitations provision, as passed by Congress, appeared as one subsection in a section headed \"Civil liability.” See Consumer Credit Protection Act, Pub.L. 90-321, § 130(e), 82 Stat. 146, 157 (1968). The subheading \"Jurisdiction of courts” was added in the codification process. In contrast, the RESPA limitations provision, as passed by Congress, appeared under the heading \"Jurisdiction of Courts.” See Real Estate Settlement Procedures Act of 1974, Pub.L. 93-534, § 16, 88 Stat. 1724, 1731 (1974). We do not ascribe significance to this distinction for present purposes. Whatever its origin, the" }, { "docid": "19752690", "title": "", "text": "$8 but did not alter her responsibility for paying the entire Membership Fee. The Contract also contained a provision limiting the liability of the health club “for the loss or theft of, or damage to, the personal property of members or guests”. Ruiz contends that the foregoing provisions of the Contract constitute violations of common law and various Massachusetts consumer protection laws, including the Massachusetts Health Club Services Contracts Act, Mass. Gen. Laws ch. 93, § 78 et seq. (hereinafter, “the Health Club Act”), the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A (hereinafter, “Chapter 93A”), and Mass. Gen. Laws ch. 93, § 101, which prohibits the waiver of consumer rights provided by Massachusetts statutes. II. Motion to Dismiss Defendants have moved to dismiss Ruiz’s class action complaint on the grounds that 1) the Court lacks personal jurisdiction over Bally and 2) plaintiff has failed to state claims upon which relief can be granted. The Court first addresses the issue of personal jurisdiction. A. Legal Standard A court may not dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) “unless it appears, beyond doubt, that the [p]laintiff can prove no set of facts in support of his claim which would entitle him to relief.” Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In considering the merits of a motion to dismiss, the court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. Nollet v. Justices of the Trial Court of Mass., 83 F.Supp.2d 204, 208 (D.Mass.2000) aff'd, 248 F.3d 1127 (1st Cir.2000). Although a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor, Langadinos v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir.2000), it need not credit bald assertions or unsupportable conclusions, Banco Santander de Puerto Rico v. Lopez-Stubbe (In re Colonial Mortgage Bankers Corp.)," }, { "docid": "6764428", "title": "", "text": "OPINION AND ORDER STEIN, District Judge. Plaintiffs bring this action against Astoria Federal Savings and Loan Association claiming that a $2,479 charge assessed in connection with the assignment of their home mortgage violated the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”). Plaintiffs also assert state law claims of common law equity, breach of contract, unjust enrichment, fraud, and deceptive and unfair practices in violation of New York General Business Law § 349. Astoria Federal now moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss all claims except for plaintiffs’ breach of contract and unjust enrichment claims. Because, as set forth below, the $2,479 charge was neither part of the finance charge of the mortgage as defined by TILA and its implementing Regulation Z nor is it a prepayment penalty, that charge did not have to be disclosed prior to entering into the loan agreement, and defendant’s motion is accordingly granted. BACKGROUND Plaintiffs Matthew J. Pechinski and Brooke Ritvo Pechinski own an apartment at 62 West 62nd Street in Manhattan. (Compl.f 16.) On March 27, 1997, plaintiffs obtained a $297,600 loan from The Greater New York Savings Bank (“Greater New York”) in order to purchase the apartment. (Id.) The “Fixed/Adjustable Rate Note” (the “Note”) signed in connection with the mortgage stated that the borrower “may make a full prepayment or partial prepayments without paying any prepayment charge.” (Compl. ¶ 18 and Ex. A.) The Pechinskis also received a federal Truth-in-Lending Disclosure Statement that stated that there was no prepayment penalty. (ComplV 18.) However, the mortgage stated that Greater New York could charge plaintiffs a “reasonable fee” as a condition of its agreeing to assign the mortgage to another lending institution. (Compl.20.) In the fall of 1997, subsequent to plaintiffs’ obtaining the mortgage, Greater New York was acquired by Astoria Financial Corp., at which point the Astoria Federal Savings and Loan Association became the holder of plaintiffs’ note and mortgage. (ComplV 31.) Four and one half years after obtaining their mortgage, plaintiffs notified Astoria Federal that they intended to refinance the mortgage, using U.S. Trust Corporation as the new, refinancing" }, { "docid": "17762308", "title": "", "text": "Proceedings: (In Chambers) Order Granting Defendants’ Motion to Dismiss and Granting Wachovia’s Motion to Expunge PHILIP S. GUTIERREZ, District Judge. Pending before the Court is Defendants’ Motion to Dismiss Plaintiffs Complaint and Wachovia’s Motion to Expunge. The Court finds the matter appropriate for decision without oral argument. Fed. R.Civ.P. 78; Local R. 7-15. After considering the moving papers, the Court hereby GRANTS Defendants’ Motion to Dismiss and GRANTS Wachovia’s Motion to Expunge. I. Background According to plaintiff Fidel Ayala (“Ayala”), he and his wife, plaintiff Cristina Hernandez (“Hernandez”) (collectively, “Plaintiffs”), purchased a single family residence in Oxnard, California in 1996 (the “Property”). At some point in late 2005, defendant World Savings Bank, FSB (“World”) contacted Plaintiffs by phone. World offered Plaintiffs a refinancing loan in the amount of $420,000 (the “Loan”), and a home equity line of credit in the amount of $16,000.00 (the “HELOC”). The Loan came with an initial “teaser rate” of 2.750% and had a cap of a maximum rate of 11.950% with negative amortization of the original principal. As far as repayment plans went, World offered Plaintiffs a “Pick a Payment” option, which essentially consisted of four different repayment plans which Plaintiffs, at their discretion, could select: the minimum payment plan; the interest only plan; the fully amortized at 30 years plan; and the fully amortized at 15 years plan. Ultimately, Plaintiffs accepted World’s offer. The parties then memorialized the agreement with an adjustable rate note, which was secured by a deed of trust recorded against the Property. With respect to repayment options, Plaintiffs selected the minimum payment option, which, according to them, was the option World expected them to pick based on their collective income. Apparently, under that option the negative amortization ended up being so high that in August 2006, less than one year after Plaintiffs entered into this transaction, they had to get another loan of $100,000 “just to keep afloat.” In the end, the negative amortization of the loans continued to cause the Loan to be recast with monthly payments that exceeded Plaintiffs’ income. As a result, Plaintiffs allegedly defaulted on the" }, { "docid": "20103802", "title": "", "text": "the Court struck Plaintiffs amended complaint in its entirety pursuant to Fed.R.Civ.P. 12(f) as Plaintiff failed to state claims with specificity and consistency with the actual facts which form the basis of those claims as admitted at the Parties’ 6/23/2011 status conference and permitted the Plaintiff to file a second amended complaint. [Dkt. # 64], On July 7, 2011, Caires filed his second amended complaint. [Dkt. # 67]. On September 28, 2011, Chase moved to dismiss the second amended complaint which is pending before the Court. Factual Allegations The following facts are taken from Caires’s second amended complaint. On December 11, 2006, Caires purchased 634 North Street, Greenwich, CT and entered into an Adjustable Rate Purchase Money Mortgage and a Home Equity Line of Credit (“HELOC”) with Washington Mutual Bank (“WAMU”) with regard to this property. [Dkt. # 67, Second Amended Complaint (“SAC”) at ¶¶ 8, 43], In August of 2007, Caires entered into a Residential Construction/Permanent Loan agreement with WAMU for $5.5 million. [Id. at ¶ 44], Plaintiff alleges that the loan combined a “high interest rate construction loan and an adjustable rate permanent loan.” Id. Plaintiff further alleges that during the construction phase, the Residential Construction Loan Agreement provisions controlled over any conflicting provision and that for the 18 month construction phase WAMU would be paid interest of only $27,588 per month. [Id. at ¶ 45], Plaintiff further alleges that “[ejach payment would be advanced by the bank from an interest reserve account ie: [sic] a segregated portion of the loan amount from which the bank would pay itself and that the bank would also advance funds during the construction period pursuant to a draw schedule and a “detailed builder’s agreement to pay the contractors and materials.” ” Id. Plaintiff alleges that the bank had established an interest reserve fund of $424,575 from the loan proceeds and a contingency fund of $100,000. [Id. at ¶ 45]. Caires alleges that “i[f] the project was not completed within 18 months, Caires could request an extension of the construction phase, pay a fee of a % point of the loan amount" }, { "docid": "495271", "title": "", "text": "states that “[bjased on Citibank’s recent review of [Grigoryan’s] credit bureau report, there ha[d] been a material change in [his] financial circumstances” and that, “[a]s a result, [it was] suspending [his] [HELOC].” Grigoryan also proffers a letter from New Wave Reality Group, stating that because of the late BOA payment, it could not refinance his home loan when he “came to [its] office [in] December] 2009.” A third exhibit, also from Citibank, indicates that it suspended the HELOC on March 5, 2010 and again on October 20, 2011. Finally, Grigoryan proffers a November 9, 2011 letter from Citi, which states that it had closed his HELOC account due to the Trans Union credit report. Because the earliest violations for which Grigoryan can sue concern the BOA HELOC and accrued thirty days after defendants received Grigoryan’s reinvestigation requests on October 30, 31, and November 4, 2011, Grigoryan “could not have been damaged by [defendants’] failure to comply with § 1681i until the 30-day reinvestigation period expired” on November 29 and 30, 2011 and December 3, 2011. See Acton, 293 F.Supp.2d at 1100 (“Equifax further argues that Plaintiff cannot recover for the injury under § 1681i because Plaintiff cancelled the Coventry Home contract on May 19,1999, more than two weeks before Equifax’s 30-day reinvestigation period expired on June 5, 1999. The Court agrees. Plaintiff could not have been damaged by Equifax’s failure to comply with § 1681i until the 30-day reinvestigation period expired. By that time he had cancelled the Coventry Home purchase. Equifax’s failure to reinvestigate did not cause the cancellation.”). Thus, because all of the alleged account closures and credit denials occurred prior to November 29, 2011 — the earliest date on which liability could be imposed for unreasonable reinvestigation — no rational trier of fact could find that defendants’ conduct caused any emotional distress arising out of these failures to access the equity in his property. See Banga, 29 F.Supp.3d at 1280 (“To the extent this claim alleges a negligent violation of the FCRA, summary judgment in favor of Chase is warranted because Plaintiff has failed to adduce evidence" }, { "docid": "22837389", "title": "", "text": "would have expected the amounts financed (and thus the finance charges) under clause (i) to be generally much lower than those under clause (iii). In eases (like this one) where loans are not secured by real property, the amount financed can be no greater than $25,000. § 1603(3). Where loans are secured by real property, clause (iii) includes both first mortgages and second mortgages (or home equity loans), which are far more common and significantly larger than the open-end home equity lines of credit (HELOCs) that are still covered by clause (i). In 1994, 64% of home-owning households had first or second mortgages, but only 7% had HELOCs with outstanding balances. Survey Research Center, Univ. of Michigan, National Survey of Home Equity Loans 25 (Oct. 1998) (Table 1) (hereinafter National Survey). The mean first mortgage balance was $66,884; the mean second mortgage balance was $16,199; and the mean HELOC outstanding balance was $18,459. Ibid. Assuming a 10% interest rate (which would have been higher than a typical HELOC in 1994, see G. Can-ner & C. Luckett, Home Equity Lending: Evidence from Recent Surveys, 80 Fed. Res. Bull. 571, 582 (1994)), a year of finance charges on the mean HELOC would still have been less than $2,000 — which, when doubled, would still be less than two times the maximum damages under clause (iii), a disproportion no greater than what Congress has explicitly prescribed between clauses (ii) and (iii). In addition, very large outstanding balances on HELOCs are comparatively rare. In 2001, roughly 94% of them were less than the median outstanding mortgage principal of $69,227. See U. S. Census Bureau, American Housing Survey for the United States: 2001, pp. 150, 152 (Oct. 2002) (Table 3-15) (hereinafter American Housing Survey). Approximately 2% of HELOC balances were $100,000 or more (compared with approximately 32% of mortgages). See ibid. Because closed-end loans, are many times more common, and typically much larger, than open-end ones, the finance charges would generally be much higher under clause (iii) than under clause (i), providing a reason for Congress to focus more intently on limiting damages in clause" }, { "docid": "17197896", "title": "", "text": "MEMORANDUM & ORDER GORTON, District Judge. Plaintiffs Delynn J. and Jesse S. Speleos bring suit against BAC Home Loans Servicing, L.P., d/b/a Bank of America Home Loans (“BAC”), Federal National Mortgage Association (“Fannie Mae”) and OrlansMoran, PLLC (“OrlansMoran”). Plaintiffs sue all defendants for negligence (Count I), BAC for third-party breach of contract (Count II), BAC and Fannie Mae for a violation of the duty of good faith and fair dealing (Count III), OrlansMoran for a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k (Count IV), and BAC and Fannie Mae for a violation of the Consumer Protection Act, Mass. Gen. Laws Ch. 93A (“Chapter 93A”) (Count V). Before the Court are the joint motion to dismiss of defendants BAC and Fannie Mae and defendant OrlansMoran’s separate motion to dismiss plaintiffs’ First Amended Complaint. Plaintiffs have opposed both motions. I. Factual Background Generally, plaintiffs allege that defendants violated the Home Affordable Modification Program (“HAMP”) Guidelines by conducting a foreclosure sale of their home while they were under consideration for a loan modification. Plaintiffs purchased their home at 750 Whittenton Street, Unit 1022, Taunton, Massachusetts (“the Property”) in October, 2007 for $175,900. The purchase was financed with a loan from Stonebridge Mortgage Company for $175,900 that was secured by a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”). Fannie Mae owned the mortgage and BAC was the servicer. In November, 2009, Mr. Speleos lost his job. Although Ms. Speleos is employed, plaintiffs have been trying to modify their loan since March, 2010 pursuant to the HAMP program. HAMP was created by Congress under the Emergency Economic Stabilization Act of 2008, Pub.L. No. 110-343, and is governed by Guidelines set forth by Fannie Mae and the United States Department of the Treasury. Pursuant to the HAMP program, mortgage loan servicers enter into Servicer Participation Agreements with Fannie Mae that require the servicer to perform loan modification and foreclosure prevention services specified in the HAMP Guidelines. Ms. Speleos requested a loan modification application from BAC in March, 2010 and received it on June 16, 2010. She filled out" }, { "docid": "14588683", "title": "", "text": "MEMORANDUM OPINION AND ORDER ASPEN, District Judge: Defendants ITT Corp. (“ITT”), ITT Consumer Financial Corp. (“ITT Financial”), Aetna Finance Co. (“Aetna\"), and ITT Lyndon Life Insurance Co. (“ITT Insurance”), a group that we will refer to collectively as the “ITT defendants,” have moved to dismiss the three-count class action complaint filed by Zenovia Elliott. The complaint alleges violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (1988), the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1693 (1988), and the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121 1/2, paras. 262-272 (1989). More specifically, Elliott complains of the ITT defendants’ alleged practice of “insurance packing” — that is, the practice of “using unfair and deceptive means to induce the purchase of insurance in connection with consumer credit transactions.” Complaint at 2. For the reasons set forth herein, we deny the motion. I. A motion to dismiss should not be granted unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). We take the “well-pleaded allegations of the complaint as true and view them, as well as all reasonable inferences therefrom, in the light most favorable to the plaintiff.” Balabanos v. North Am. Inv. Group, Ltd., 708 F.Supp. 1488, 1491 n. 1 (N.D.Ill.1988) (citing Ellsworth). II. On January 7, 1988, Elliott and her husband obtained a loan from ITT Financial in the amount of $3,096.00. The Elliotts declined to purchase the credit insurance of fered by ITT Financial. On January 13, 1988, the Elliotts and ITT Financial agreed on a method to refinance certain existing debts, including the January 7 loan. The new loan totaled $57,120.00, and the El-liotts secured it by taking a second mortgage on their Chicago home. Of the $26,-417.29 “amount financed,” nearly twenty percent" }, { "docid": "13795340", "title": "", "text": "Opinion by Judge BRUNETTI; Dissent by Judge PREGERSON. BRUNETTI, Circuit Judge: The plaintiffs in this case are a group of senior citizen homeowners who entered into “reverse mortgage” loan agreements with the defendants. Alleging that the defendants misrepresented several key terms of the agreements, the plaintiffs filed a class-action lawsuit asserting Truth in Lending Act and various state-law claims. The district court, finding that the loan agreements contained valid arbitration provisions, ordered the individual plaintiffs to separately submit their claims to arbitration, and dismissed the plaintiffs’ complaint. We hold that Congress has eliminated our jurisdiction to review this case under the Federal Arbitration Act. See 9 U.S.C. § 16(b). Thus, we dismiss this appeal without prejudice to a later timely, appeal. BACKGROUND Defendants/Appellees, collectively referred to as “Providential,” sell reverse mortgage loans to qualifying senior citizen homeowners. These loans are made in monthly installments, and are meant to supplement the senior citizen’s income. Repayment of the principal and interest is deferred for as long as the borrower remains in his or her home. In exchange, the homeowner conveys to Providential a deed of trust for equity in the home equal to the amount borrowed plus interest. The reverse mortgage agreements consist of a deed of trust, a loan agreement, and a note. Providential also provided customers with other documents, including a Truth in Lending Act disclosure statement and promotional materials. Plaintiffs/Appellants are or represent individuals who “bought” Providential’s reverse mortgage loans. Because Appellants allege to have incurred substantial costs in their dealings with Providential that were not disclosed in (or were contrary to) the terms of the loan documents, they filed a class action lawsuit on behalf of themselves and all similarly situated senior citizen homeowners, alleging causes of action for violations of the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. (“TILA”), fraud, negligent misrepresentation, and state-law statutory violations. Asserting that the deeds of trust executed by Appellants contain an enforceable arbitration provision, Providential filed a motion to compel arbitration on an individual basis pursuant to section 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §" }, { "docid": "5173828", "title": "", "text": "new business. • Various third-party market participants, including several underwriters in this offering and in the concuirent Equity Units Offering, have made estimates of our losses, estimates of credit impairments and mark-to-market losses that in some cases materially exceed the amounts we have reported. • We are subject to credit risk and other risks related to BMBS and CDOs of ABS. We have insured, and written credit default swaps (“CDS”), with respect to, RMBS (including transactions composed of second lien mortgage products, Home Equity Line of Credit (“HELOCs”) and closed end second mortgage loans) and CDOs of ABS and are thus exposed to credit risk associated with those asset classes ... While further deterioration in performance of the subprime mortgage sector is generally expected, the extent and duration of any future continued deterioration of the credit markets is unknown, as is the impact, if any, on potential claim payments and ultimate losses of the securities within Ambac Assurance’s portfolio. • Our underwriting and risk management policies and practices in the past have not anticipated unforeseen risks and/or the magnitude of potential for loss as the result of foreseen risks. See Ambac Prospectus Supplement, filed March 7, 2008 pursuant to SEC Rule 424(b)(5), for the Equity Units Offering, S-29 to S-41 (emphasis in original); Ambac Prospectus Supplement, filed March 7, 2008 pursuant to SEC Rule 424(b)(5), for the Common Stock Offering, S-7 to S-22 (emphasis in original). PROCEDURAL BACKGROUND Before the Court are defendants’ motions to dismiss the CAC made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On August 27, 2009, motions to dismiss and memoranda of law were filed on behalf of Ambac and the Individual Defendants (“Ambac Mem.”), the Underwriter Defendants (“Underwriters Mem.”), and KPMG (“KPMG Mem.”). The Court heard oral argument on the pending motions on December 17, 2008 (“Oral Argument”). PLEADING STANDARDS I. Motion to Dismiss On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in plaintiffs’ favor." } ]

[ { "docid": "13733386", "title": "", "text": "Although the reviser’s note on section 1404(a) states that it was drafted in accordance with the doctrine of forum non conveniens, the Supreme Court has established that it is more than a mere codification of that doctrine. District courts now have the discretion to grant transfers upon a lesser showing of inconvenience by a defendant than would be required for dismissal under forum non conveniens. While the relevance of state case law under Erie R. Co. v. Tompkins to the decision of a transfer motion in a diversity of citizenship case was an open question until recently, it now seems to be settled, in the Second Circuit at any rate, that the state rule of forum non conveniens does not control the federal court. The criteria used to determine whether transfer should be granted, however, are still basically those applied in forum non conveniens cases. The Norwood v. Kirkpatrick case did not alter the basic considerations set forth in Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 506-507, 67 S.Ct. 839, 843, 91 L.Ed. 1055: “Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Before applying these considerations to the instant case, it would be well to set forth the basic contentions of the parties in the underlying action. Plaintiff alleges the following: (1) That it is in possession of a revolutionary new trade secret which will substantially reduce the costs of refining sugar; (2) That after many negotiations in New York City as well as in the State of Illinois, the plaintiff imparted to the defendant corporation in confidence, its hitherto undisclosed process; (3) That this disclosure was made on the basis of an agreement under which the defendant undertook to keep such disclosures confidential; (4) That defendant has pirated the process, claims it as its own development, and is" } ]

[ { "docid": "10527164", "title": "", "text": "that Australia is the forum where it belongs. We agree. Forum non conveniens is a common law doctrine of ancient lineage under which a court with otherwise proper jurisdiction and venue can, in its discretion, decline jurisdiction out of deference to a more convenient forum. Although the transfer of venue statute, 28 U.S.C. § 1404(a), has eliminated the doctrine in eases where the more convenient forum is another federal court, it still serves an important administrative function where the better place for the suit is a court of a foreign country. See Wright & Miller § 3828, at 278-81. Indeed, it has been written that, in such situations the doctrine has actually grown in importance in recent years due to the tremendous growth of international transactions such as the one at issue in this case. See generally Note, The Convenient Forum Abroad Revisited: A Decade of Development of the Doctrine of Forum Non Conveniens in International Litigation in the Federal Courts, 17 Va.J.Int’l L. 755, passim (1977). In Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court recognized the validity of common law forum non conveniens in the federal court system and set forth the factors which must go into every forum non conveniens analysis. These factors fall into two main groups: those which address the private interest of the litigants and those which address the public interest of the court system. With respect to the private interest, which was stated to be the most significant, the Gulf Oil Court wrote as follows: Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of the unwilling, and the cost of obtaining attendance of willing, witnesses; ... and all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. 330 U.S. at 508, 67 S.Ct. at 843. Nonetheless: Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury" }, { "docid": "10935089", "title": "", "text": "the level of purposeful contacts between Michelin Spain and this forum, and in consideration of the fact that there is no more appropriate forum in this country for asserting suit over Michelin Spain in this matter, I find that Shaffer’s due process requirements, even if they should be applicable to maritime cases, have been fulfilled. B. Forum Non Conveniens “The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). In determining whether to dismiss a case on grounds of forum non conveniens “[a]n interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive____ [T]he plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Id. at 508. See also Canada Malting Co. Ltd. v. Paterson S.S. Ltd., 285 U.S. 413, 422-23, 52 S.Ct. 413, 415, 76 L.Ed. 837 (1932) (approving the doctrine of forum non conveniens in maritime case where the litigation is between foreigners). The validity of this analysis was confirmed in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The Supreme Court overruled a determination by the Third Circuit Court of Appeals that the district court had abused its discretion when it dismissed an action arising out of a plane crash in Scotland for forum non" }, { "docid": "10935088", "title": "", "text": "United States. This element of \"jurisdiction by necessity” was cited by the Amoco court as a factor contributing to the assertion of jurisdiction. 605 F.2d at 655. See supra n. 2. Secondly, the Amoco Court stated that “even if the Shaffer rule of ‘minimum contacts,’ ‘fair play’ applies in the realm of jurisdiction by attachment in admiralty ____that application must be understood in the light of the special history and circumstances of that unique body of law.” 605 F.2d at 655 n. 5 (citing Grand Bahama, supra). In particular, the court cited the peripatetic nature of the defendant and the independent constitutional bases in admiralty suits as factors justifying the formulation of different jurisdictional policies for admiralty attachment. It concluded, “not only that jurisdiction by attachment of property should be accorded special deference in the admiralty context, but also that maritime actors must reasonably expect to be sued where their property may be found.” Overall, I conclude that Seatrain’s third-party quasi-in rem action against Michelin Spain pursuant to Rule B(l) should not be dismissed. Given the level of purposeful contacts between Michelin Spain and this forum, and in consideration of the fact that there is no more appropriate forum in this country for asserting suit over Michelin Spain in this matter, I find that Shaffer’s due process requirements, even if they should be applicable to maritime cases, have been fulfilled. B. Forum Non Conveniens “The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). In determining whether to dismiss a case on grounds of forum non conveniens “[a]n interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view" }, { "docid": "14953071", "title": "", "text": "the litigation, the plaintiff’s choice of forum must be accorded great weight and, for that reason, “should rarely be disturbed.” Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). This, moreover, is especially true in situations where, as is also the case here, the plaintiff is a United States resident and the only alternative forum available is a foreign jurisdiction. See Wahl v. Pan American World Airways, Inc., 227 F.Supp. 839, 841 (S.D.N.Y.1964); Shulman v. Compagnie Generale Transatlantique, 152 F.Supp. 833, 836 (S.D.N.Y.1957). When such circumstances are present, the movant’s burden becomes considerable. To establish that the relief being sought — dismissal — is warranted, the defendant in essence must show not only that the proposed forum would be a significantly more convenient one, but also that to subject it [the defendant] to trial in the forum at issue would be manifestly unjust, vexatious and/or oppressive. Ionescu v. E. F. Hutton & Co. (France) S.A., 465 F.Supp. 139, 145 (S.D.N.Y.1979); see Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A. (Cruzeiro), 232 F.Supp. 433, 442-44 (S.D.N.Y.1964). The court, after reviewing the materials submitted by the parties, does not believe that defendants CMH and Okanagan can reasonably be said to have sustained this burden in relation to the motion under discussion. From their contentions, it does not appear that the defendants will suffer any injustice if the present matter remains in this court, nor does it appear that such will prove to be oppressive to them. Indeed, from the materials they present, it cannot even be said that the proposed forum will prove to be a more convenient one for this litigation to be heard. Dismissal for reasons of forum non conveniens is an extraordinary and limited remedy, to be utilized only in exceptional situations. Hoffman v. Goberman, 420 F.2d 423, 426 (3d Cir. 1970). Based upon the contentions of the defendants, it cannot reasonably be concluded that the matter at bar presents such an exceptional case. That being so, the motion of defendants CMH and Okanagan to have the present action dismissed for" }, { "docid": "23544149", "title": "", "text": "court did not dispute its jurisdiction of these maritime claims, nor that court’s discretion in determining whether the action before it should be conditionally dismissed on forum non conveniens grounds that the Greek courts were a more suitable forum. As we apprehend their argument before us, the ultimate contention of the defendants is that the district court abused its discretion in not dismissing the suit because, in their view, the court was in error under the Lauritzen test (see text at note 7 infra) in determining that American law applied. The fountainhead decision in determining application of the forum non conveniens principle is Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), a non-maritime case. There the Court stated that “[t]he principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” 330 U.S. at 507, 67 S.Ct. at 842. The doctrine “presupposes at least two forums in which the defendant is amenable to process . [and] furnishes criteria for choice between them.” Id. Although “the combination and weight of factors requisite to given results are difficult to forecast or state,” 330 U.S. at 508, 67 S.Ct. at 843, among the factors of “private interest” listed by the Court were accessibility of proof and witnesses, enforceability of any resulting judgment, and the ease and expense of litigation in the forum. Such factors allow a court to “weigh relative advantages and obstacles to fair trial.” Id. A trial court should also look to “public interest” factors such as the burden created for local court calendars and local juries by trials having no connection with the forum. The Court stressed that “[t]he doctrine leaves much to the discretion of the court . . . But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” Id. In the exercise of discretion to retain jurisdiction of maritime tort suits, the Unit ed States Supreme Court early stated that “[the] jurisdiction" }, { "docid": "3024737", "title": "", "text": "General Motors on the ground of forum non conveniens. General Motors in substance argues that, although this action is technically within this court’s jurisdiction, the court should decline to exercise its jurisdiction and instead let the parties resolve this controversy in a lawsuit already pending in Canada. After consideration of the pleadings, briefs and affidavits submitted, the court — treating defendant’s motion as a motion for summary judgment — grants defendant’s motion and orders the case dismissed. The ancestral Supreme Court decision on forum non conveniens is Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). As Mr. Justice Jackson explained in Gulf Oil, “[t]he principle of-forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” 330 U.S. at 507, 67 S.Ct. at 842. Congress codified the Gulf Oil decision in part in 1948 by its passage of 28 U.S.C. § 1404, section (a) of which provides for the transfer of cases from one United States district court to another upon forum non conveniens grounds. The enactment of section 1404 left unaffected the inherent power of federal courts to dismiss lawsuits which cannot be transferred under that section but which nevertheless fall within the general principles of forum non conveniens. Yerostathis v. A. Luisi, Ltd., 380 F.2d 377 (2d Cir. 1967); 1A Moore’s Federal Practice ¶ 0.204 (2d ed. 1974). Mr. Justice Jackson’s opinion in Gulf Oil enumerated several factors tp be considered by a district court in resolving a question of forum non conveniens: An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions" }, { "docid": "14873491", "title": "", "text": "Abatement and Revival. The doctrine of forum non conveniens is inapplicable here for the reason that the State court is located at Petersburg, Illinois, approximately 25 miles from Springfield, in which city is located the courthouse for this court. There is no necessity for witnesses to travel hundreds of miles at great expense, and there is no possibility that the cost and expense of litigation will consume any judgment. The case can be tried in either court at about the same expense. Springfield would be just as convenient as Petersburg. The practical aspect of the doctrine is discussed in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, where the court said: “Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses. “If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses ; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the en-forcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant -by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly" }, { "docid": "13388179", "title": "", "text": "and the accompanying affidavits of plaintiff, of Arthur Stark, Esq., counsel familiar with the facts of the case, of A. J. Barranco, Jr., Esq., counsel for plaintiff, and of Anthony Ricketts, Esq., partner in the law firm of Higgs and Johnson, Nassau, Bahamas. The principle of forum non conveniens is simply that a court may resist the imposition upon it of jurisdiction under certain circumstances even when it clearly has jurisdiction and venue is otherwise proper. See, e. g., Gulf Oil Corporation v. Gilbert, 230 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1946). This Court first notes that the doctrine of forum non conveniens is a procedural one governed by federal rather than state law. Willis v. Weil Pump Co., 222 F.2d 261 (2d Cir. 1955); Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F.Supp. 433 (S.D.N.Y.1964) ; Shulman v. Compagnie Generale Trans-atlantique, 152 F.Supp. 833 (S.D.N.Y. 1957); Ultra Sucro Co. v. Illinois Water Treatment Co., 146 F.Supp. 393 (S.D.N. Y.1956). The relevant factors for determining whether the doctrine of forum non conveniens is applicable have been enunciated and discussed by the Supreme Court, as follows: “ * * * The doctrine leaves much to the discretion of the court to which plaintiff resorts * * *. If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by" }, { "docid": "960033", "title": "", "text": "motions is whether this case should go forward in this Court or in an appropriate Court in Vienna, Austria. Both defendants assert that the pertinent facts require dismissal of this action on grounds of forum non conveniens. Following a review of the record here, this Court would agree. The factors to be considered by a Court in deciding whether or not to dismiss a complaint on the ground of forum non conveniens were discussed by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed.2d 1055 (1947) and more recently in Piper Aircraft Company v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Even when a Court has jurisdiction of a dispute, it may apply principles of forum non conveniens and, under appropriate circumstances, resist imposition upon its jurisdiction. Gulf Oil Corp., supra, 330 U.S. at 507, 67 S.Ct. at 842. A forum non conveniens determination is committed to the sound discretion of the trial court which is required to consider all relevant public and private interest factors and undertake a reasonable balancing of these factors. Piper Aircraft Co., supra, 454 U.S. at 257, 102 S.Ct. at 266. In the Gulf Oil Corp. case, the Supreme Court listed the following private interest factors (330 U.S. at 508, 67 S.Ct. at 843): Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment if one is obtained. The Court will weigh relative advantages and obstacles to fair trial. In listing the public interest factors which a court should also consider in deciding whether or not to apply the doctrine, the Supreme Court in Gulf Oil Corp. further stated (330 U.S. at 508-509, 67 S.Ct. at 843): Factors of public interest also have" }, { "docid": "955958", "title": "", "text": "venue would be proper since defendant lives within that district, 28 U.S.C. § 1391(a), and defendant acknowledges that he would be subject to process in that district. This Court must now determine whether a transfer is justified under the balance of the language of § 1404(a), that is, for “the convenience of parties and witnesses” and “in the interest of justice.” The power of a court to transfer pursuant to § 1404(a) has its roots in the doctrine of forum non conveniens. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court outlined the factors to be evaluated in determining whether forum non conveniens should apply in a particular case: An interest to be considered and the one most likely to be most pressed, is the private interest of the litigant. Important considerations are the relative case of access to proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive. Id. at 508, 67 S.Ct. at 843. In addition, the Gilbert court stated that “factors of public interest” were applicable, including congested court dockets and the appropriateness of having trial of a diversity case in the forum at home with the law which will govern the case. Id. at 508-09, 67 S.Ct. at 843. The grant of power to transfer under § 1404(a) did not effect a codification of the doctrine of forum non conveniens. While the same factors relevant to forum non conveniens should be considered a lesser showing of inconvenience need be shown to justify transfer pursuant to § 1404(a). Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955); Mead Corp. v. Oscar J. Boldt Const. Co., 508 F.Supp. 193, 197 (S.D. Ohio 1981) (Mead Corp.). This Court has carefully examined the Gilbert factors, the applicable precedent, and the memoranda and affidavits of the parties to this" }, { "docid": "17712033", "title": "", "text": "did exist the action should be dismissed pursuant to the doctrine of forum non conveniens. The district court held that it possessed personal jurisdiction over the defendants, but it agreed with the defendants that the Cayman Islands was the more convenient forum in which this suit should be litigated. The district court held that, after it considered the factors enunciated by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), it was “convinced that the interests of convenience require the dismissal of this action.” Analysis. The determination of whether an action should be dismissed on the ground of forum non conveniens is committed to the sound discretion of the district court, and will be overturned only upon a showing of an abuse of that discretion. In Gilbert, the Supreme Court held: Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to rpsult in many abuses. 330 U.S. at 508, 67 S.Ct. at 843 (footnote omitted). Although perhaps no list of factors is exhaustive, the Supreme Court in Gilbert enunciated private and public concerns a trial court must consider when it decides whether to dismiss a case on the ground of forum non conveniens: If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." }, { "docid": "22096210", "title": "", "text": "McHenry, Judicial Jurisdiction Under The Warsaw Convention, 29 J.Air L. & Com. 205 (1963). For the above reasons, we hold that article 28(1) of the Warsaw Convention does not prevent a district court from considering and applying the doctrine of forum non conveniens. III. Having decided the district court in this case should and could apply the federal law of forum non conveniens, we now determine, first, what is the federal law of forum non conveniens, second, how should it be applied by a district court, and, third, what is our standard of review on appeal from a denial of a motion to dismiss for forum non conveniens. A. In outlining the appropriate forum non conveniens analysis to be applied in these cases, we begin with the Supreme Court's seminal cases of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Koster v. American Lumbermens Mutual Casulty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Gulf Oil and Koster established the general principle “that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized.” Gulf Oil Corp., 330 U.S. at 507, 67 S.Ct. at 842. The Court stated that in deciding to exercise or decline jurisdiction “the ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice.” Koster, 330 U.S. at 527, 67 S.Ct. at 833. The determination of what is most convenient rests upon several private and public factors which the Court stated should be considered and balanced by a court when presented with a motion to dismiss for forum non conveniens. The private interests to be considered are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the costs of obtaining attendance of willing, witnesses; probability of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expedititous and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment if one" }, { "docid": "13388178", "title": "", "text": "the Southern District of Florida against Limited and United States Steel International (New York), Inc. Said defendants moved to quash service of process and to dismiss the complaint in that court on jurisdictional grounds. The motion was granted on February 14, 1968 by the Hon. Ted Cabot. Thereafter, plaintiff brought suit against United States Steel Corp. in that same Court. That defendant’s motion for summary judgment was granted on May 29,1969 by Judge Cabot. Subsequently, on July 31, 1969, plaintiff initiated the instant action in this Court. As indicated supra, Limited is the sole remaining defendant in this action. Defendant Limited now moves, citing Rule 12(b) (3) of the Federal Rules of Civil Procedure, that this Court dismiss plaintiff’s complaint on the ground of forum non conveniens. This motion came on before the undersigned on November 25, 1969, and decision was reserved. We have examined defendant’s motion papers and the supporting affidavits of Louis A. Craeo, counsel for defendant, and of William W. Sywak, Secretary of defendant Limited, and have likewise examined plaintiff’s opposing papers and the accompanying affidavits of plaintiff, of Arthur Stark, Esq., counsel familiar with the facts of the case, of A. J. Barranco, Jr., Esq., counsel for plaintiff, and of Anthony Ricketts, Esq., partner in the law firm of Higgs and Johnson, Nassau, Bahamas. The principle of forum non conveniens is simply that a court may resist the imposition upon it of jurisdiction under certain circumstances even when it clearly has jurisdiction and venue is otherwise proper. See, e. g., Gulf Oil Corporation v. Gilbert, 230 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1946). This Court first notes that the doctrine of forum non conveniens is a procedural one governed by federal rather than state law. Willis v. Weil Pump Co., 222 F.2d 261 (2d Cir. 1955); Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F.Supp. 433 (S.D.N.Y.1964) ; Shulman v. Compagnie Generale Trans-atlantique, 152 F.Supp. 833 (S.D.N.Y. 1957); Ultra Sucro Co. v. Illinois Water Treatment Co., 146 F.Supp. 393 (S.D.N. Y.1956). The relevant factors for determining whether the doctrine of forum non" }, { "docid": "13388180", "title": "", "text": "conveniens is applicable have been enunciated and discussed by the Supreme Court, as follows: “ * * * The doctrine leaves much to the discretion of the court to which plaintiff resorts * * *. If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress’ the defendant by inflicting upon him expense or trouble not necessary to his right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” (Emphasis added; footnotes omitted.) Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1946). The latter landmark case declaring the inherent power of the federal courts to decline to exercise jurisdiction in appropriate cases was decided two years before the statutory codification of the doctrine of foru/m non conveniens in 28 U.S.C., sec. 1404(a). That codification, permitting transfer of actions properly brought to another district, did not, however, diminish the power of federal courts, recognized in Gilbert, to dismiss cases improvidently brought in a United States Court, e. g., cases that should have been brought in a foreign forum. Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1" }, { "docid": "1672147", "title": "", "text": "it has no application where, as here, a treaty between the United States and the foreign plaintiff’s country allows nationals of both countries access to each country’s courts on terms no less favorable than those applicable to nationals of the court’s country.” Defendants do not dispute that such a treaty exists between the United States and France guaranteeing equal access to the courts. Plaintiffs are thus entitled to consideration equal that of a United States citizen in their choice of a United States forum. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), the United States Supreme Court stated the relevant factors to be considered in determining whether a case should be dismissed on forum non conveniens grounds: “If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. And interest to be considered, and the one likely to be most pressed, is the private interest to the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. “Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden" }, { "docid": "3226058", "title": "", "text": "jurisdiction is grounded on diversity of citizenship. Willis v. Weil Pump Co., 222 F.2d 261 (2d Cir. 1955); Ultra Sucro Co. v. Illinois Water Treatment Co., 146 F.Supp. 393, 396 (S.D.N.Y. 1956). The dismissal of an action on the grounds of forum non conveniens is a matter for the court’s discretion, based upon a considex*ation of the following factors: relative ease of access to proof;: availability of compulsory process to obtain the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; “and all other-practical problems that make trial of a case easy, expeditious and inexpensive.”' Gulf Oil Corp. v. Gilbert, 330 U.S. 501„ 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The defendaxxt contends that one of many sex-ious practical problems-in this case is the thorny question of applying and interpreting a unique Civil. Law concept — “Dolus,” a concept which: the defendant contends can more readily be dealt with by a Bx-azilian court, which: has both a wox'king knowledge of the-Civil Law and the ability to understand! Portuguese speaking witnesses. Defend -ant also points out that it would have to call “upwards of 20 witnesses” to defend the action in this district. And, in addition to other grievances, the defend- • ant complains of the potentially burdensome cost of transporting its own employees to this forum. Although forum non conveniens remains a viable doctrine 'when the alternative forum is a court located outside the United States, it has been described as “a harsh rule and is . applied in rather rare cases, since if the ■ court invokes the doctrine it would have to dismiss the action,” rather than transfer it to a more convenient forum, as it would be required to do if the alternative forum were another federal court. 'Glicken v. Bradford, supra, at 304 of 204 F.Supp. While earnestly urging its position that the action should be dismissed, defendant has been candid in its recognition of the oft-quoted statement, particularly applicable here, that “Unless the -balance of convenience is strongly in .favor of the defendant, a plaintiff’s 'choice of forum will" }, { "docid": "3226057", "title": "", "text": "at 233. Cruzeiro’s activities and contacts, however, are not so tenuous as to justify a similar concern by the court here, that jurisdiction in this district would contravene the Fourteenth Amendment’s due process-clause. Defendant’s contention that' plaintiff’s suit must be dismissed under the doctrine of forum, non conveniens is also unpersuasive. Although § 1404(a) of the Judicial Code, 28 U.S.C. § 1404 (a), relating to transfer of suits has codified the former forum non conveniens doctrine where the more convenient tribunal for trial of the action is another' United States District Court, dismissal on-forum non conveniens grounds is not am impossibility when the action should have been brought outside the United States. Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633 (2d Cir. 1956), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956); Hendricks v. Alcoa Steamship Co., 206 F.Supp. 693 (E.D.Pa.1962); Glicken v. Bradford, 204 F.Supp. 300, 304 (S.D.N.Y. 1962). Forum non conveniens is a procedural doctrine that is governed by Fedex'al rather than state law even in cases where jurisdiction is grounded on diversity of citizenship. Willis v. Weil Pump Co., 222 F.2d 261 (2d Cir. 1955); Ultra Sucro Co. v. Illinois Water Treatment Co., 146 F.Supp. 393, 396 (S.D.N.Y. 1956). The dismissal of an action on the grounds of forum non conveniens is a matter for the court’s discretion, based upon a considex*ation of the following factors: relative ease of access to proof;: availability of compulsory process to obtain the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; “and all other-practical problems that make trial of a case easy, expeditious and inexpensive.”' Gulf Oil Corp. v. Gilbert, 330 U.S. 501„ 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The defendaxxt contends that one of many sex-ious practical problems-in this case is the thorny question of applying and interpreting a unique Civil. Law concept — “Dolus,” a concept which: the defendant contends can more readily be dealt with by a Bx-azilian court, which: has both a wox'king knowledge of the-Civil Law and the ability to understand! Portuguese speaking" }, { "docid": "18628988", "title": "", "text": "(doctrine also applicable where only alternative forum is state court). Numerous federal cases have discussed the doctrine of forum non conveniens under factual circumstances similar to those presented in this case. See, e. g. Dahl v. United Technologies Corp., 632 F.2d 1027, 15 Aviation Cas. 18, 352 (CCH) (3d Cir., 1980); Reyno v. Piper Aircraft Co., 630 F.2d 149 (3d Cir. 1980); Michell v. General Motors Corp., 439 F.Supp. 24 (N.D.Ohio 1977); Del Rio v. Ballenger Corp., 391 F.Supp. 1002 (D.S.C.1975). All analyses, however, center upon the Supreme Court’s seminal pronouncement in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). In that case the Court recognized that federal district courts have inherent power to dismiss a suit pursuant to the doctrine of forum non conveniens. 330 U.S. at 504-05, 67 S.Ct. at 840-41. Although the need to exercise this power has diminished consider ably since the enactment of section 1404(a), it nevertheless remains a viable remedy in the appropriate case. Accordingly, when there exists an alternative forum and transfer under section 1404(a) is not an option, the district court may dismiss for forum non conveniens if the defendant has carried its burden under Gulf Oil. Writing for the majority in Gulf Oil, Justice Jackson identified two classes of interests to be considered — the private interests of the litigants and those of the public: “An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum," }, { "docid": "8284023", "title": "", "text": "non conveniens presupposes the existence of an alternative forum where plaintiff can adequately vindicate his rights and “the doctrine furnishes criteria for choice between [two forums]”. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The Court cannot say with any degree of certainty that, as a practical matter, such an alternative forum exists in which to try the present case. Moreover, upon reconsideration of all relevant factors, the Court is convinced that the balance of convenience does not strongly favor defendants and, therefore, plaintiff’s choice of forum should not be disturbed. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 504-509, 67 S.Ct. 839; see also Baksay v. Rensellear Polytech Institute, 281 F.Supp. 1007, 1009 (S.D.N.Y.1968). While many of the allegedly important witnesses are British citizens, most of them are employed by defendants. Thus, these witnesses presumably are under defendants’ control and are able to testify in New York, if defendants so desire. See Toti v. Plymouth Bus Company, 281 F.Supp. 897, 898 (S.D.N.Y.1968). That a United States District Court may not possess the same degree of familiarity with British substantive law that a British court may have “is not a factor that weighs very heavily upon the forum non conveniens scale. The task of deciding foreign law is a chore that the federal courts are called upon to perform with regularity.” Ciprari v. Servicos Aereos Cruzeiro do Sul, S.A., 232 F.Supp. 433, 443 (S.D.N.Y.1964) (Brazilian law); Burt v. Isthmus Development Co., 218 F. 2d 353, 357 (5th Cir.), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955) (Mexican law); Horovitz v. Renault, Inc., 162 F.Supp. 344, 347 (S.D.N.Y.1958) (Spanish and French law). While retention of jursidiction of this suit may involve some inconvenience to defendants, dismissal would merely shift the inconvenience to plaintiff. Indeed, dismissal might very well deprive plaintiff of any forum in which to vindicate his legal rights. In short, the balance of convenience and interests of justice favor retention of this suit. Accordingly, the motion for reargument is granted and the original decision declining" }, { "docid": "7546149", "title": "", "text": "circumstancés and/or facts, latent to the record now before the court, may be brought out on trial. At this stage of the proceedings decisions as to discovery are not in issue; the court will not preempt. In addition to defenses of failure of plaintiff to state a claim, improper venue, et cetera, defendant pleads a general denial of the material allegations of the complaint. This joins issues of negligence, proximate cause, damages, and may involve others such as respondeat superior. In this climate the court proceeds. It cannot justify its decision on the unchaste corner stone of “broad discretion to travel so lightly on the road of responsibility would avoid the welcome burden of giving reason for opinion. Necessarily stare decisis becomes the companion of research and decision. The landmark decision of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), is convincing evangelism here: The principle of forum non conveniens is simply that a court may resist im position upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a stategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself. Id. at 507, 67 S.Ct. at 842. * * * * . * * If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of" } ]

[ { "docid": "15059595", "title": "", "text": "denied defendant's motion to dismiss the indictment. Under the Due Process Clause, the Supreme Court has developed \"what might loosely be called the area of constitutionally guaranteed access to evidence.\" California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982)). Under Brady v. Maryland 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the suppression of material exculpatory evidence violates a defendant's due process rights, irrespective of the good faith or bad faith of the prosecution. However, where the government fails to preserve evidence whose exculpatory value is indeterminate and only \"potentially useful\" to defendant, we apply a different test. Arizona v. Yonngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337-38, 102 L.Ed.2d 281 (1988). In such a case, the defendant must show: (1) that the government acted in bad faith in failing to preserve the evidence; (2) that the exculpatory value of the evidence was apparent before its destruction; and (3) that the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other reasonably available means. See Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337-38; Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2533-34. The first two elements of this tripartite test are inter-related. \"The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.\" Youngblood, 488 U.S. at 56-57 n. *, 109 S.Ct. at 336 n. *. To establish bad faith, then, a defendant must prove \"official animus\" or a \"conscious effort to suppress exculpatory evidence.\" Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533. While we disapprove of the government's dilatory response to defendant's discovery requests, we cannot say that it acted in bad faith. There is no evidence that anyone in the Detroit Police Department or the U.S. Attorney's office suspected that the tape" } ]

[ { "docid": "5596654", "title": "", "text": "S.Ct. 2528, 81 L.Ed.2d 413 (1984). The district court evaluated this claim on the merits and correctly concluded that petitioner was unable to demonstrate a due process violation under Youngblood. As such, the failure to raise the issue on appeal was not constitutionally ineffective. As we recently explained in United States v. Wright, 260 F.3d 568, 570 (6th Cir.2001), separate tests apply to determine whether the state’s failure to preserve evidence rises to the level of a due process violation in cases in which material exculpatory evidence is not accessible, Trombetta, 467 U.S. at 489, 104 S.Ct. 2528, as opposed to cases in which “potentially useful” evidence is not accessible, Youngblood, 488 U.S. at 58, 109 S.Ct. 833. When the state fails to preserve evidentiary material “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant,” a defendant must show: (1) that the government acted in bad faith in failing to preserve the evidence; (2) that the exculpatory value of the evidence was apparent before its destruction; and (3) that the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other means. Youngblood, 488 U.S. at 57, 109 S.Ct. 333; United States v. Jobson, 102 F.3d 214, 218 (6th Cir.1996). “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood, 488 U.S. at 57 n. *, 109 S.Ct. 333. It is not enough that the police knew that semen samples could be determinative of guilt or innocence if preserved or tested. Although the investigation apparently remained open, the police had not identified Monzo or anyone else as a suspect in the crimes at the time the evidence was mistakenly destroyed. When the government is negligent, or even grossly negligent, in failing to preserve potentially exculpatory evidence, bad faith is not established. Wright, 260 F.3d at 571; Jobson," }, { "docid": "1278474", "title": "", "text": "United States v. Agurs, 427 U.S. 97, 110-11, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1976), the government has a duty to disclose material exculpatory evidence to the defendant, and the good faith or bad faith of the government in failing to do so is irrelevant. However, when the issue is preservation of potentially exculpatory evidence, the defendant must show bad faith on the part of the government to prevail on a violation of due process claim. See Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988) (holding that failure to preserve potentially useful evidence does not constitute denial of due process of law unless criminal defendant can show bad faith on part of police). As for bad faith, the Court stated that “the presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” 488 U.S. at 56-57, 109 S.Ct. at 336-37 n. * (emphasis added). Without deciding whether the physicians were agents of the prosecution, we are of opinion that even if they were agents, they did not act in bad faith by failing to preserve the semen samples in such a state that they later could be subjected to further scientific analysis. First, the physicians followed standard procedures in collecting, analyzing, and disposing of the semen. Second, at the time that the physicians disposed of the remaining semen, they did not know of any exculpatory value of the semen because the semen had not been tested for a blood grouping analysis. That test, indeed, was not one performed at the Medical Center. Holdren also claims that the failure of the police to measure or preserve the footprints at the scene or to fingerprint the comb and beer bottle found at the scene violated his due process rights. This claim, however, asserts nothing more than negligence on the part of the police investigators and does not indicate any bad faith on their part in failing" }, { "docid": "15529001", "title": "", "text": "of police to preserve potentially useful evidence for a defendant is not a denial of due process of law unless the defendant can show bad faith on the part of police. Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). When the state fails to preserve evidentiary material “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant,” a defendant must show: (1) that the government acted in bad faith in failing to preserve the evidence; (2) that the exculpatory value of the evidence was apparent before its destruction; and (3) that the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other means. Monzo v. Edwards, 281 F.3d 568, 580 (6th Cir.2002). A habeas petitioner has the burden of establishing that the police acted in bad faith in failing to preserve potentially exculpatory evidence. Lile v. McKune, 45 F.Supp.2d 1157, 1163 (D.Kan.l999)(internal citations omitted). The mere fact that the police had control over evidence and failed to preserve it is insufficient, by itself, to establish bad faith, nor will bad faith be found in the government’s negligent failure to preserve potentially exculpatory evidence. Id. “The presence of absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood, 488 U.S. at 56, 109 S.Ct. 333, n. Petitioner’s claim fails because he has failed to show that the police acted in bad faith in failing to preserve this evidence. More importantly, Petitioner has failed to show that this evidence was even potentially exculpatory. Even if the police acted in bad faith in failing to preserve or test this evidence, there is no due process violation where the destroyed evidence has only speculative exculpatory value. United States v. Jobson, 102 F.3d 214, 219 (6th Cir.1996); Jones v. McCaughtry, 965 F.2d 473, 479 (7th Cir.1992). Finally, Petitioner has" }, { "docid": "17841681", "title": "", "text": "defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); United States v. Rambo, 74 F.3d 948, 954 (9th Cir.1996). Patterson has neither argued nor presented any evidence that the officers acted in bad faith in failing to preserve the roots. “Indeed, he does not even challenge thd district court’s finding that the government'did not act in bad faith” in not preserving the roots. United States v. Hernandez, 109 F.3d 1450, 1455 (9th Cir.1997). Patterson’s due process claims can be rejected on this basis alone. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333 (holding that failure to preserve potentially useful evidence does not violate due process-absent a showing of bad faith); Hernandez, 109 F.3d at 1455 (finding no due process violation where there was no evidence of bad faith); Rambo, 74 F.3d at 954 (rejecting due process claim because deputies’ conduct indicated “only poor judgment, not bad faith”). Even if Patterson could demonstrate bad faith, m order for the due process clause to be implicated, the evidence that was lost “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Hernandez, 109 F.3d at 1455. Patterson has not shown that the evidence at issue satisfies either of these conditions. Y Patterson argues that the district court erred in admitting expert testimony by a horticulturalist, Professor Danny L. Barney, regarding whether the plants he saw in the police video had root formations. Patterson argues that whether the video showed roots on the marijuana plants is a jury determination. Patterson also contends that Barney was not qualified as an expert on marijuana. We review the district court’s decision to admit expert testimony for an abuse of discretion. See United States v." }, { "docid": "18931", "title": "", "text": "that he would receive false information. D. Cunningham’s Exculpatory Evidence Claim Cunningham concludes by arguing that Perez violated the Due Process Clause of the Fourteenth Amendment by failing to preserve and gather exculpatory evidence. A police officer’s failure to preserve or collect potential exculpatory evidence does not violate the Due Process Clause unless the officer acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir.1989). “The presence or absence of bad faith ... turn[s] on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood, 488 U.S. at 57, 109 S.Ct. 333. Cunningham claims Perez acted in bad faith because he failed to document his interrogations and did not keep a record of Jennifer and Sarah’s statements denying sexual abuse. Perez also failed to gather any physical evidence, such as bed sheets or clothing, which could have exonerated Cunningham. These facts are not specific or compelling enough to show bad faith. See Jeffers, 267 F.3d at 907(stating plaintiff must “put forward specific, nonconclusory factual allegations that establish improper motive”) (internal quotations omitted). Perez’s failure to document his interrogations does not illustrate an improper motive because Perez likely believed his tactics were lawful, a conclusion which we reached earlier in the opinion. Further, Perez’s failure to gather any physical evidence does not show bad faith because the value of the untested evidence is speculative. It could have exonerated Cunningham, but it also could have incriminated him. While Perez’s investigative work may have been negligent or incomplete, it was not conducted in bad faith. Perez’s investigation differs from cases in which the court has found an improper motive. In Miller v. Vasquez, 868 F.2d 1116 (9th Cir.1989), for instance, the officer referred to the defendant using an expletive and lied about his knowledge of potential exculpatory evidence. Id. at 1121. The officer also tried to dissuade witnesses from testifying in favor of the defendant. Id. Perez’s alleged conduct did not rise to this level. Id. Accordingly," }, { "docid": "22576538", "title": "", "text": "disposal of guns. She testified that on October 31, 1993, she conducted a routine file review of impounded guns to see if they could be returned, destroyed, or saved. She ran a computer cheek which showed that the state charges against Hernandez had been dismissed. There was no indication that federal charges had been filed. She verified that there was no information regarding the registered owner of the handgun. As was her custom, she did not call the officers involved in the case for a status report. She did not receive a call from anyone to get rid of the gun. She disposed of the gun in accord with normal police department procedures. The district court found that Hernandez had the opportunity to test the gun before the first trial, that the evidence was at most potentially exculpatory, and that there was no bad faith on the part of the government in the gun’s destruction. We agree. The mere failure to preserve evidence which could have been subjected to tests which might have exonerated the defendant does not constitute a due process violation. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Mitchell v. Goldsmith, 878 F.2d 319, 321 (9th Cir.1989). Where the government fails to preserve evidence that is only potentially exculpatory, the right to due process is violated only if it possesses “an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Moreover, in Youngblood, the Supreme Court modified the Trombetta test by imposing the additional requirement that the defendant demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38. Hernandez presents no evidence of bad faith. Indeed, he does not even challenge the district court’s finding that the government did not act in bad faith in destroying the gun. The district court’s" }, { "docid": "20894292", "title": "", "text": "The Supreme Court has established two tests to determine whether a government’s failure to preserve evidence amounts to a due process violation. The first test, established in Trombetta, applies in cases where the government fails to preserve material exculpatory evidence, while the second test, established in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), applies in cases where the government fails to preserve “potentially useful” evidence. Wright, 260 F.3d at 570. Under Trombetta, to be deemed constitutionally material, evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain, comparable evidence by other reasonably available means.” 467 U.S. at 489, 104 S.Ct. 2528. In such cases, “[t]he destruction of material exculpatory evidence violates due process regardless of whether the government acted in bad faith.” Wright, 260 F.3d at 571. Meanwhile, under the Youngblood standard, in cases “where the government fails to preserve evidence whose exculpatory value is indeterminate and only potentially useful,” the defendant must demonstrate: (1) that the government acted in bad faith in failing to preserve the evidence; (2) that the exculpatory value of the evidence was apparent before its destruction; and (3) that the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other reasonably available means. United States v. Jobson, 102 F.3d 214, 218 (6th Cir.1996) (citing Youngblood, 488 U.S. at 57-58, 109 S.Ct. 333). In order to establish bad faith, “a defendant must prove official animus or a conscious effort to suppress exculpatory evidence.” Id. (internal quotation marks omitted). Brosky argues that government agents impermissibly destroyed equipment suspected of being used to manufacture methamphetamine before that equipment could be tested for fingerprints that might have linked it to an individual named Joseph Ore rather than to Brosky. Joseph Ore had been living with Brosky during 2009 and had previously been arrested for manufacturing methamphetamine. Brosky argues that local law enforcement officers “concealed knowledge about the true ownership of the items discovered” during the search." }, { "docid": "13747875", "title": "", "text": "useful” evidence is not available, there is no due process violation unless the government acted in bad faith. Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Negligence, even gross negligence, on the part of the government does not constitute bad faith. Wright, 260 F.3d at 571. Once bad faith is shown, the defendant must also demonstrate that he cannot obtain comparable evidence by other reasonable available means. Id. (citing United States v. Jobson, 102 F.3d 214, 218 (6th Cir.1996.)). On appeal, Branch argued only that the videotape constituted merely “potentially useful” exculpatory evidence, and did not argue it was material exculpatory evidence. Thus, the due process issue is whether the tape’s destruction was due to Colston acting in bad faith. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Colston testified that he failed to preserve the videotape because it lacked an audio track and was therefore “flawed,” and that he “recirculated it intentionally.” Colston acknowledged that “it was probably a bad decision on my part,” but that “[r]ight or wrong,” he thought the tape had no evidentiary value so it could be recirculated. The district court found no credible evidence that Colston acted in bad faith. We review this factual decision for clear error. See United States v. Cody, 498 F.3d 582, 589 (6th Cir.2007) (district court’s acceptance of officer’s reason for destroying evidence was not clearly erroneous (and citations therein)). We can find none. Although recirculation of the tape may have been negligent, or even grossly negligent, as the district court found, it was not in bad faith. Therefore, the tape’s recirculation did not violate Branch’s right to due process. Cf. United States v. Femia, 9 F.3d 990, 993-94 (1 st Cir.1993) (holding that the government’s destruction of tape recordings of conversations between defendant and alleged co-conspirators did not violate due process, despite the government’s gross negligence in failing to preserve them). In short, the district court did not err in denying Branch’s motion to dismiss based on a due process violation. C. Safety-valve Branch argues that the district court lacked authority to modify the previously imposed sentence" }, { "docid": "18195632", "title": "", "text": "(quoting United States v. Valenzuela-Bemal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system. Id. In California v. Trombetta, the United States Supreme Court found that the due process clause requires the government to preserve potentially exculpatory evidence on behalf of defendants. The Supreme Court stated that the constitutional duty to preserve evidence must be limited to evidence which might play a significant role in the suspect’s defense. See id., 467 U.S. at 489, 104 S.Ct. 2528. To meet this standard of constitutional materiality, destroyed evidence must (1) possess exculpatory value which was apparent before it was destroyed; and (2) be of such a nature that defendant could not obtain comparable evidence by other reasonably available means. Id. In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme Court extended Trombetta and held that in eases where the exculpatory-value of evidence was indeterminate and all that can be confirmed is that the evidence was “potentially useful” for the defense, defendant must show that the government acted in bad faith in destroying the evidence. In other words, the Supreme Court found that in cases involving the failure to preserve “potentially useful” evidence — ie. evidentiary material of which no more can be said that it could have been subjected to tests which might have exonerated defendant — due process is not violated unless defendant can show that law enforcement acted in bad faith in destroying the evidence. See id. at 57-58, 109 S.Ct. 333. In Youngblood, defendant made no suggestion of bad faith and the Supreme Court concluded that the failure to preserve potentially useful evidence did not violate due process. See id. at 58, 109 S.Ct. 333. Defendant contends that Trombetta applies to his destruction of evidence claim. Under this theory, to show that the government violated his due process rights, defendant must show that (1) the marijuana plants possessed" }, { "docid": "17137868", "title": "", "text": "very high and past errors from the tests were extremely limited. The Court also pointed out that defendants had access to other evidence which they could have used to impeach the reliability of the breath sample evidence. In the end, the Court determined that there was no constitutional violation because there was no bad faith and the evidence was immaterial to the defense since it had no exculpatory value before being destroyed. Id. at 489-91, 104 S.Ct. 2528. The Court confronted the destruction of evidence issue again in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In Youngblood, a defendant convicted of sexual assault claimed a due process violation because the state failed to properly test the victim’s clothing for physical evidence and also failed to refrigerate the clothing which would have preserved the evidence for additional future testing. In rejecting this argument, the Court observed that the evidence was only “potentially exculpatory” and therefore failed Trombetta’s requirement that the evidence possess an exculpatory value apparent before the evidence was destroyed. Id. at 56-57, 109 S.Ct. 333. The Court then reiterated the requirement there be some governmental bad faith by stating, “[w]e therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. 333. In light of the principles announced in Trombetta and Youngblood, it is readily apparent that the Illinois courts did not violate Henry’s due process rights by admitting evidence of the state’s test results which showed that the substances seized from Henry’s car were cannabis and cocaine. First and foremost, Henry fails to demonstrate any bad faith by the police. Rather, Henry agrees that the evidence custodian mistakenly destroyed the drugs after receiving the civil forfeiture order and incorrectly believing that his criminal case had been completed and the evidence no longer needed. Since he has demonstrated no bad faith by the government, there is no constitutional violation. See Youngblood, 488 U.S. at 57-58, 109" }, { "docid": "18874161", "title": "", "text": "Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), a case in which the Arizona police had faded to preserve semen samples from the body and clothing of a victim of a sexual assault. The defendant contended that the failure to preserve the evidence had deprived him of due process. The Supreme Court disagreed. It concluded that although Brady “makes the good or bad faith of the State irrelevant when [it] fads to disclose to the defendant material exculpatory evidence^] the due process clause requires a different result when we deal with the fadure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57, 109 S.Ct. at 337. Thus, “unless a criminal defendant can show bad faith on the part of the police, fadure to preserve potentiady useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. at 337; See also California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (police officers’ fadure to preserve breath samples which had been subjected to Intoxi-lyzer testing did not violate the Constitution when (1) the officers were acting “in good faith and in accord with their normal practice,” (2) the chances that preserved samples would have been exculpatory were “extremely low,” and (3) the defendants had other means of challenging the Intoxdyzer results); United States v. Deaner, 1 F.3d 192, 199-201 (3d Cir.1993) (district court did not err in relying on the government’s evidence of the weight of marijuana plants in sentencing defendant despite the government’s destruction of the plants without producing them to the defendant); United States v. Barton, 995 F.2d 931 (9th Cir.1993) (government’s negligent destruction of marijuana plants which possibly could have disproved agents’ statement in affidavit of probable cause held not violative of due process absent a showing of bad faith on the agents’ part). Youngblood and Trombetta indicate that we should apply a “good faith” test" }, { "docid": "23631284", "title": "", "text": "to trial. Accordingly, the Amended Complaint does not allege a constitutional violation with respect to the pre-trial disclosure of the gloves and, therefore, the CID Detectives are entitled to qualified immunity from this claim. The CID Detectives also argue that they are entitled to qualified immunity from Yarris’s claim that they mishandled and failed to preserve evidence that could be used for DNA testing. The Supreme Court’s decision in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), establishes the standard for determining whether law enforcement officials have infringed on a defendant’s due process rights by failing to preserve “eviden-tiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57, 109 S.Ct. 333. The Youngblood Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58, 109 S.Ct. 333. “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 57 n. *, 109 S.Ct. 333. At the outset, we note that Youngblood addresses law enforcement officials’ constitutional duty to preserve evidence prior to conviction, whereas Yarris’s claim is based on the CID Detectives’ post-conviction conduct. We nonetheless believe that the Supreme Court’s application of the Due Process Clause in Youngblood guides our analysis here. However, the Youngblood decision did not indicate that it was limited to its temporal context, as it sought to govern applicability of the Due Process Clause in “what might loosely be called the area of constitutionally guaranteed access to evidence” and resolve the violation it described broadly as “the failure of the State to preserve evidentiary material.” 488 U.S. at 55, 57, 109 S.Ct. 333. We agree with the reasoning of Judge King of the Fourth" }, { "docid": "8692536", "title": "", "text": "California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). As illustrated by the conflicting expert opinions, the subject shirt would have supported Caldwell’s theory only if laboratory tests returned positive for gunpowder, but would have bolstered the state’s case if those tests detected no gunpowder. Accordingly, the shirt did not possess apparent exculpatory value, because negative gunpowder test results would have discredited the defense contention that Caldwell shot Henry only after Henry drew menacingly near to Caldwell. In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), law enforcement agents, through negligence or inadvertence, failed to properly preserve evidence, including evidence contained on the victim’s clothing, which, after forensic testing, may (or may not) have exonerated the defendant. The Supreme Court explained that “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant,” constitutes a due process deprivation only when the police have acted in “bad faith.” Id. at 57-58, 109 S.Ct. 333. The Court elaborated: We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice require it, ie., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Id. at 58,109 S.Ct. 333. In the action sub judice, Caldwell has not evidenced that the police’ considered the shirt to have been exculpatory, or had otherwise acted in bad faith by discarding it (again assuming the existence of a shirt); thus no due process violation transpired. Moreover, both defense counsel and the prosecution were permitted to comment upon the" }, { "docid": "9998058", "title": "", "text": "after the time for appeal has elapsed. That being the case, and there being evidence in the record that the police believed Hubanks had pleaded guilty, the mere existence of the state law is not clear and convincing proof that the police acted in bad faith. Second, Hubanks argues that it was unreasonable for the court of appeals to find that the passage of time and lack of a pending test request indicated an absence of bad faith, because the police should have been aware of the long-range exculpatory potential of DNA testing. The record indicates that the exhibits were destroyed 15 months after Hubanks’ trial. During that 15-month period, no requests were made to conduct further tests on the evidence. It was reasonable for the appeals court to interpret these factors as evidence that the exhibits were not destroyed in bad faith, but rather pursuant to departmental policy. Third, Hubanks argues that the court of appeals unreasonably found that the exhibits lacked exculpatory value. To support this contention, Hubanks proposes a hypothetical scenario in which DNA testing of the lost evidence inculpates not one but two assailants, neither of whom are Hubanks. This speculation does not rebut the appeals court’s finding. 2. Application of Youngblood Hubanks also argues that while the Wisconsin Court of Appeals identified the correct Supreme Court precedent, Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the court unreasonably applied Youngblood to the facts of his case. Youngblood is relevant when the government has failed to preserve evidence, but no more can be said of that evidence than that “it could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57-58, 109 S.Ct. 333 (emphasis added). In such situations, failure to preserve evidence is not a violation of due process rights unless the defendant can demonstrate: (1) bad faith on the part of the government; (2) that the exculpatory value of the evidence was apparent before it was destroyed; and (3) that the evidence was of such a nature that the petitioner" }, { "docid": "20150518", "title": "", "text": "Arizona v. Youngblood, 488 U.S. 51, 56-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); (2) the evidence had exculpatory value that was apparent before it was lost, California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); and (3) he is “unable to obtain comparable evidence by other reasonably available means,” Id. Here, the SCDAO sent the files to the FBI several months after the February 24, 2004 seizure, some six years ago. The Government represents to the Court that it has taken steps to find the missing documents, including contacting the SCDAO directly. On the other hand, Bielli has offered nothing more than the conelusory allegation that the loss of these flies reflects bad faith on the part of the Government. The Court certainly encourages the Government to continue its effort to locate these missing files. However, in order to prove a violation of his Due Process rights, Bielli carries the burden to at least offer circumstantial evidence of bad faith. Under the circumstances in this case, the Court is unwilling to infer that the loss of these files is attributable to anything more than possible negligence on the part of the Government. Bielli’s failure to show that the Government acted in bad faith is fatal to his argument. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333 (holding “that unless a criminal defendant can show bad faith on the part of the [Government], failure to preserve potentially useful evidence does not constitute a denial of due process of law.”); United States v. Rastelli, 870 F.2d 822, 833 (2d Cir.1989) (finding that a defendant’s failure to show bad faith on the part of the' Government was, in and of itself, fatal to his claim). However, even assuming that Bielli could make this required showing of bad faith and also demonstrate that the files contained exculpatory value that was apparent before they were lost, his argument would still fail because he is able to obtain comparable evidence through reasonably available means. Bielli contends that, notwithstanding the seizure of the files by the SCDAO, he was able" }, { "docid": "386284", "title": "", "text": "due process violation. In California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the Court held that the government violates the defendant’s right to due process if the unavailable evidence possessed “exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), the Court added the additional requirement that the defendant demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. See also Paradis 954 F.2d at 1488 (explaining Trombetta and Youngblood test). Youngblood's bad faith requirement dovetails with the first part of the Trom-betta test: that the exculpatory value of the evidence be apparent before its destruction. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. The presence or absence of bad faith turns on the government’s knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed. Youngblood, 488 U.S. at 56-57 n. *, 109 S.Ct. at 336-337 n. *. The equipment’s value as potentially exculpatory evidence was repeatedly suggested to government agents. During the pre-seizure investigation, Cooper’s parole officer and the lab’s landlord reported Apotheosis Research’s claims of legitimacy. Agents involved in the search knew that the lab was ostensibly configured to make dextran sulfate. In conversations following the seizure, agents repeatedly confronted claims that the equipment was specially configured for legitimate chemical processes and was structurally incapable of methamphetamine manufacture. In response to defense requests for return of the equipment, government agents stated that they held it as evidence. This statement was repeated even after the equipment had been destroyed. The equipment’s exculpatory value was apparent to government agents before they, in bad faith, allowed its destruction. The government’s argument focuses on the second part of the Trombetta test. The government contends that Cooper and Gammill would be able “to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at" }, { "docid": "13747874", "title": "", "text": "hard object” in Branch’s waistband, that he asked Branch what it was, and that Branch responded, “Man, it’s cocaine, just take it.” At this point, Colston had probable cause to seize the contraband. In sum, Branch’s motion to suppress was properly denied. B. Due Process Violation Branch also contends that his due process rights were violated by Col-ston’s failure to preserve the videotape. The failure to preserve material exculpatory evidence violates the defendant’s right to due process regardless of whether the government acted in bad faith. California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); United States v. Wright, 260 F.3d 568, 570-71 (6th Cir.2001). Constitutional materiality means that the evidence possesses both “an exculpatory value that was apparent before the evidence was destroyed and ... [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 488-89, 104 S.Ct. 2528. If “potentially useful” evidence is not available, there is no due process violation unless the government acted in bad faith. Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Negligence, even gross negligence, on the part of the government does not constitute bad faith. Wright, 260 F.3d at 571. Once bad faith is shown, the defendant must also demonstrate that he cannot obtain comparable evidence by other reasonable available means. Id. (citing United States v. Jobson, 102 F.3d 214, 218 (6th Cir.1996.)). On appeal, Branch argued only that the videotape constituted merely “potentially useful” exculpatory evidence, and did not argue it was material exculpatory evidence. Thus, the due process issue is whether the tape’s destruction was due to Colston acting in bad faith. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Colston testified that he failed to preserve the videotape because it lacked an audio track and was therefore “flawed,” and that he “recirculated it intentionally.” Colston acknowledged that “it was probably a bad decision on my part,” but that “[r]ight or wrong,” he thought the tape" }, { "docid": "1459269", "title": "", "text": "negligence, is a traditional jury issue, implying deferential review; and it is hard to see why less deference ought to be paid the trier of fact when it happens to be a judge rather than a jury.”). 1. We first consider whether the district court was correct in its ruling that Mr. Romero-Bautista must show that the Government acted in bad faith when, exercising its deportation authority, it caused the absence of witnesses that, in his view, are important to his case. The basic principles of law are well-established. The Supreme Court has explained that there is a difference between those situations in which the police fail to disclose to the defendant evidence that it knows to be material and exculpatory, and those situations in which police simply fail to preserve potentially exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In Youngblood, the Court reaffirmed that, when the Government has evidence that it knows to be exculpatory, it must disclose that evidence to the defendant. See id. at 57, 109 S.Ct. 333; see also Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That situation is different, the Court held, from one in which the Government loses or destroys evidence that it does not know to be exculpatory. See Youngblood, 488 U.S. at 57-58, 109 S.Ct. 333. With respect to lost or destroyed evidence, the Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. 333. Indeed, before Youngblood, in United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Supreme Court had been confronted with a situation similar to the one before us that called for the application of these principles. In that case, the defendant was arrested for transporting an alien illegally in the .United States. The Government retained one of the illegal aliens who had been a passenger in" }, { "docid": "18071807", "title": "", "text": "the police arrested Mr. Iron Eyes, Mr. Borud notified them that he had discovered that someone had urinated on his bed. Mr. Borud wanted to dispose of the mattress but called the police to make sure that they did not want or need it for the trial. The police officer told Mr. Borud to “go ahead” and dispose of it, and Mr. Borud threw the mattress away, along with the bedding, without any tests being performed on either. A due process violation occurs whenever the government “suppresses or fails to disclose material exculpatory evidence.” Illinois v. Fisher, — U.S.-, -, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060 (2004) (per curiam) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). In contrast, “the failure to preserve ... ‘potentially useful evidence’ does not violate due process ‘unless a criminal defendant can show bad faith on the part of the police.’ ” Id. (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)) (emphasis added in Fisher); United States v. Boswell, 270 F.3d 1200, 1207 (8th Cir.2001), cert. denied, 535 U.S. 990, 122 S.Ct. 1545, 152 L.Ed.2d 470 (2002). Mr. Iron Eyes argues that the destroyed evidence was potentially useful because if tests had been conducted on it the results might have shown that a woman had been in the home. But the record in this case shows that, at most, the police acted negligently in allowing Mr. Borud to destroy the mattress; there was no evidence of bad faith. Mr. Iron Eyes’s due process rights were thus not violated by the officers’ failure to preserve the mattress and bedding. See Youngblood, 488 U.S. at 57- 58, 109 S.Ct. 333; United States v. Chandler, 66 F.3d 1460, 1467 (8th Cir.1995). There is no error here. Finally, Mr. Iron Eyes argues that even if the destruction of evidence did not violate his due process rights, it was error for the district court to refuse to instruct the jury that it could draw adverse inferences from the police’s acquiescence to the destruction of the mattress." }, { "docid": "14872953", "title": "", "text": "case. The Supreme Court has “stressed the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government.” Youngblood, 488 U.S. at 57, 109 S.Ct. 333. In light of Youngblood, we have required a showing of bad faith to sustain a due process claim based on the failure to preserve evidence. Scoggins, 992 F.2d at 167. Moreover, we have stressed that the burden of demonstrating bad faith on the part of the government resides with the defendant. Id.; Youngblood, 488 U.S. at 58, 109 S.Ct. 333. Under Youngblood, we agree with the district court there is no evidence of bad faith on the part of the individuals involved which would constitute a due process violation. At most, the record shows Walters acted negligently in failing to notify Evans of the federal indictment, which is not enough for Webster to demonstrate a due process violation. See United States v. Iron Eyes, 367 F.3d 781, 786 (8th Cir.2004) (“[T]he record in this case shows that, at most, the police acted negligently in allowing [the evidence to be destroyed]; there was no evidence of bad faith.”). Webster’s argument the district court mischaracterized Walters’s conduct is unavailing because Webster maintained the burden to show bad faith on the part of the state officials, and he failed to present any evidence in the record tending to show anything more than mere negligence. Instead, the record shows the evidence was destroyed along with evidence from hundreds of other cases during a bi-annual standard procedure, and was signed off on by a state court judge. We are also unpersuaded by Webster’s argument the destroyed evidence would have been exculpatory. First, we agree with the district court that the presenta tion of the crack cocaine itself at trial would tend to be more inculpatory than exculpatory. While there remains a small possibility that further testing of the drugs by Webster would have revealed errors in the government’s lab analysis, the Supreme Court has rejected similar arguments as a basis for demonstrating" } ]

[ { "docid": "22855177", "title": "", "text": "IJ concluded by saying that Ndre-caj “has not demonstrated what he [said] happened to him, happened to him in Albania. But even if he did, the country conditions have changed remarkablfy]. The respondent indicated in his testimony, he’d go back to today’s Albania. So, there’s no reason in the Court’s view to find that he has a well-founded fear of future persecution.” J.A. at 94 (IJ Dec. at 36). The IJ then denied Ndrecaj’s application for asylum and for withholding of removal under the CAT and the INA, and the IJ ordered the family removed to Albania. J.A. at 94-95 (IJ Dec. at 36-37). On November 7, 2005, the Ndrecaj family appealed the IJ’s decision. J.A. at 50-51 (Not. of Appeal). On March 7, 2007, the BIA affirmed the IJ’s decision without opinion. J.A. at 2 (BIA Order). II. ANALYSIS A. Standard of Review When the BIA affirms the IJ without issuing its own opinion, we review the IJ’s opinion. Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003). When reviewing a final order of removal, we review “factual findings under the substantial evidence standard.” Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005). Under that standard, “findings of fact are ‘conclusive un less any reasonable adjudicator would be compelled to conclude to the contrary.’” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (requiring that the evidence “compel” an alternate conclusion before reversing the BIA); Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (“[T]he petitioner must show that the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite persecution or fear of persecution”). B. Due-Process Claims We succinctly summarized the analytical process for reviewing claims of due-process violations in immigration removal proceedings in Vasha v. Gonzales, 410 F.3d 863 (6th Cir.2005): We review de novo alleged due process violations in removal hearings. Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir.1998). We have stated that “Fifth Amendment guarantees of" } ]

[ { "docid": "22325430", "title": "", "text": "withholding of removal under the INA, an alien must show that there is a “clear probability,” that is, that “ ‘it is more likely than not,’ ” that she would be subject to persecution on the basis of one of these five grounds were she removed from this country. Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir.2005) (quoting 8 C.F.R. § 1208.16(b)(2)). By contrast, to be eligible for withholding of removal under the CAT, “the applicant bears the burden of establishing ‘it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Id. at 641 (quoting 8 C.F.R. § 1208.16(c)(2)). 2. Standard of Review We review the BIA’s decision on a request for withholding of removal under the same standard regardless of whether the request was made pursuant to the INA or the CAT. Castellano-Chacon, 341 F.3d at 552. We will reverse the BIA’s determination against withholding of removal if it is “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C). To reverse the BIA’s determination, we must find that the evidence “not only supports a contrary conclusion, but indeed compels it.” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004) (internal quotation marks omitted). We defer to the administrative findings of fact except when “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); accord Yu, 364 F.3d at 702. 3. Withholding of Removal Under the INA a. Past Persecution The regulations governing the withholding of removal under the INA provide, much like those governing asylum, that when “the applicant is determined to have suffered past persecution in the proposed country of removal on account of [a protected ground], it shall be presumed that the applicant’s life or freedom would be threatened in the future in the country of removal on the basis of the original claim.” 8 C.F.R. § 208.16(b)(1)®. We have held that persecution consists of “more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.”" }, { "docid": "13079840", "title": "", "text": "on both statutory and discretionary grounds. Much of the IJ’s decision focused on the finding that, due to his participation in the destruction of the mosque, Patel was, himself, a persecutor. However, on appeal, the BIA decision affirmed and adopted all of the IJ’s opinion except insofar as the IJ found that Patel was a persecutor. “Where the BIA adopts the IJ’s reasoning, the court reviews the IJ’s decision directly to determine whether the decision of the BIA should be upheld on appeal.” Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir.2005). Thus, we examine the IJ’s decision, except with respect to the finding that Patel was a persecutor. II. ASYLUM CLAIM A. Standard Of Review We have jurisdiction to review the BIA’s asylum determination under 8 U.S.C. § 1252. Under the INA, the Attorney General may grant asylum to an alien who qualifies as a “refugee,” which is defined as one “who is unable or unwilling to return to ... [his or her home country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....” 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). When an alien qualifies as a refugee, the IJ may exercise discretion to grant or deny asylum. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004). Asylum analysis, therefore, “ ‘involves a two-step inquiry: (1) whether the applicant qualifies as a ‘refugee’ as defined in § 1101(a)(42)(A), and (2) whether the applicant merits a favorable exercise of discretion by the [IJ].’ ” Id. (alteration in original) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (internal quotation marks and citation omitted)). “At the first step, we review the IJ’s factual determination as to whether the alien qualifies as a refugee under a substantial [-Jevidence test,” meaning that “findings of fact are ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). At step two, “the discretionary judgment to grant asylum to a refugee is ‘conclusive unless manifestly contrary to the law and an abuse" }, { "docid": "22444695", "title": "", "text": "must demonstrate that she meets the statutory definition of “refugee” under the INA. A refugee is “[a]ny person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42). The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a “clear probability” that, upon removal to the country of origin, his or her “life or freedom would be threatened on account of one of the statutorily enumerated factors.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998). An applicant who does not qualify for asylum necessarily does not qualify for withholding of removal. Guo v. Ashcroft, 386 F.3d 556, 561 n. 4 (3d Cir.2004). To qualify for relief under the CAT, an applicant for relief bears the burden of proving through objective evidence that “it is more likely than not” that s/he would be “tortured” in the country to which the applicant would be removed. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004); 8 C.F.R. § 1208.16(c)(2). Where, as here, the BIA affirms the IJ’s decision without opinion, “we review the IJ’s opinion and scrutinize its reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc). Review of an IJ’s decision is conducted under the substantial evidence standard, which requires that administrative findings of fact be upheld “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.2005). “ ‘[D]eference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record as a whole.’ ” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998) (quoting Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir.1994)). A. In her asylum application, Obale stated that she feared persecution by the Came roonian" }, { "docid": "18222869", "title": "", "text": "invitation. On March 29, 2002, based largely upon the submission of the fraudulent newspaper article, the IJ denied Selami’s asylum application. Moreover, the IJ found his asylum application to be frivolous pursuant to § 208(d)(6) of the INA, 8 U.S.C. § 1158(d)(6). On October 15, 2003, the BIA affirmed the IJ’s decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Selami now petitions this court for review. II. ANALYSIS A. Adverse Credibility Determination The first argument that Selami raises in his petition is that the IJ erred in finding him to be incredible. While ordinarily our review is limited to the actions taken by the BIA, “[w]hen the Board adopts the decision of the IJ in lieu of issuing its own opinion, we review the IJ’s decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th Cir.2003). Furthermore, we have stated that “[credibility determinations are considered findings of fact, and are reviewed under the substantial evidence standard.” Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). Under that standard, findings of fact are treated as “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Applying this deferential standard to Selami’s case, we conclude that the IJ’s credibility finding was supported by the evidence, and therefore the record does not compel a contrary result. Under the INA, the Attorney General may grant asylum to an alien who qualifies as a “refugee,” which is defined as one “who is unable or unwilling to return to ... [his or her home country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). An applicant for asylum bears the burden of demonstrating that “persecution is a reasonable possibility should he be returned to his country of origin.” Perkovic v. INS, 33 F.3d 615, 620 (6th Cir.1994) (internal quotation omitted). The applicant need not demonstrate that he will probably be persecuted if" }, { "docid": "1850204", "title": "", "text": "& N Dec. 634 (BIA 1996). A person whose spouse has been forced to undergo an abortion or sterilization procedure can also establish past persecution. In re C-Y-Z-, 21 I & N Dec. 915 (BIA 1997). To establish eligibility for withholding of removal under the CAT, the applicant must show he would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c). See also footnote 2, supra. B. Standard of Review When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as supplemented by the BIA, becomes the basis for review. Ka v. Gonzales, 236 Fed.Appx. 189, 191 (6th Cir. 2007) (citing Singh v. Ashcroft, 398 F.3d 396, 400-01 (6th Cir.2005)). “This court reviews any legal conclusions de novo and factual findings and credibility determinations for substantial evidence.” Id. The Court of Appeals “directly reviews the decision of the IJ while considering the additional comment made by the BIA.” Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir.2007). “Although this Court reviews the BIA’s legal conclusions de novo, it must defer to the BIA’s reasonable interpretations of the INA.” Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir.2008) (quoting Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir.2005)). “Factual findings are reviewed under a substantial evidence standard ‘in which we uphold a BIA determination as long as it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Id. (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004)); Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir.2007). “Under this deferential standard, the court may not reverse the Board’s determination simply because we would have decided the matter differently.” Koulibaly, 541 F.3d at 619 (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003)) (internal quotation marks and citations omitted). “Unless ‘any reasonable adjudicator would be compelled to conclude to the contrary,’ the BIA’s findings of fact are ‘conclusive.’ ” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). Facts relevant to credibility determinations, and withholding of removal under the Act and the CAT, are all reviewed under this" }, { "docid": "19128097", "title": "", "text": "well as the BIA’s additional reasons.” Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir.2008); see also Haider v. Holder, 595 F.3d 276, 281 (6th Cir.2010). All legal determinations made by the IJ or BIA are reviewed de novo. Zoarab, 524 F.3d at 780. Factual findings are reviewed deferentially under a substantial-evidence standard: they are upheld if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)), and may be reversed only if the evidence “not only supports a contrary conclusion, but indeed compels it.” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.2004) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003)). That is, we uphold the BIA’s determinations unless they are “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C). Because the IJ found the Mandebvus credible, we accept their factual statements as true. Zoarab, 524 F.3d at 780. III. ASYLUM The Mandebvus argue that the BIA erred by dismissing their applications for asylum as untimely and failing to consider the merits of their asylum claims. An asylum applicant must “demonstrate[ ] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). If an applicant does not file within the one-year time limit, his application nonetheless may be considered if he “demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or' extraordinary circumstances relating to the delay in filing an application.” Id. at § 1158(a)(2)(D). The Mandebvus concede that there are no “extraordinary circumstances” to justify the delay in filing, but they argue that the uptick in violence during the 2008 Zimbabwean elections constitutes “changed circumstances” that excuse non-compliance with the one-year deadline. The immigration judge explained his finding that the Mandebvus failed to dem onstrate changed country conditions adequate to satisfy § 1158(a)(2)(D) as follows:" }, { "docid": "22339797", "title": "", "text": "denied CAT relief because Ramos did not face a clear probably of torture in Honduras. The BIA affirmed in a summary disposition. Ramos timely petitions for review of the denial of asylum and withholding of removal, but not the denial of CAT relief. II. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. 8 C.F.R. § 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review the IJ’s legal determinations de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). The IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s findings of fact for substantial evidence. Halaim, 358 F.3d at 1131. Additionally, “[w]e accept [the petitioner’s] testimony as true when, as here, the IJ found [him] to be credible.” Id. (citing Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002)). III. Congress vested the Attorney General with the discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1)(A). The INA defines “refugee,” in relevant part, as: any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). While asylum is a discretionary form of relief, the Attorney General must grant withholding of removal if “the alien’s life or freedom would be threatened” in the country to which he would be removed because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). Thus, to be eligible for either form of relief, the persecution feared must be on account" }, { "docid": "19128096", "title": "", "text": "filing. He also concluded that it was not probable that the Mandebvus would be persecuted or tortured if forced to return to Zimbabwe. The Mandebvus appealed to the BIA, which issued a decision affirming the IJ. Id. at 3-4 (BIA Dec.). This timely appeal followed. On October 4, 2012, after we heard oral argument, we encouraged the parties to explore whether there was some means by which the Mandebvus could remain in the United States legally. We held the case in abeyance. By April 10, 2013, both of the Mandebvus’ daughters had been granted prosecutorial discretion, and they are thus no longer subject to removal. On January 7, 2014, the government offered a grant of prosecutorial discretion, subject to certain employment restrictions, to the Mandeb-vus. Sheya and Mtandazo declined the offer and indicated that they wished this case to proceed. Accordingly, we now adjudicate the Mandebvus’ petition for review. II. STANDARD OF REVIEW When “the BIA adopts and affirms the Id’s opinion, but provides additional reasons for its ruling, we review the IJ’s opinion as well as the BIA’s additional reasons.” Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir.2008); see also Haider v. Holder, 595 F.3d 276, 281 (6th Cir.2010). All legal determinations made by the IJ or BIA are reviewed de novo. Zoarab, 524 F.3d at 780. Factual findings are reviewed deferentially under a substantial-evidence standard: they are upheld if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)), and may be reversed only if the evidence “not only supports a contrary conclusion, but indeed compels it.” Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.2004) (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003)). That is, we uphold the BIA’s determinations unless they are “manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(C). Because the IJ found the Mandebvus credible, we accept their factual statements as true. Zoarab, 524 F.3d at 780. III. ASYLUM The Mandebvus" }, { "docid": "22475785", "title": "", "text": "under the CAT, the applicant must show he would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c). See footnote 2, supra. B. Standard of Review When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as supplemented by the BIA, becomes the basis for review. Ka v. Gonzales, 236 Fed.Appx. 189, 191 (6th Cir.2007) (citing Singh v. Ashcroft, 398 F.3d 396, 400-01 (6th Cir.2005)). “This court reviews any legal conclusions de novo and factual findings and credibility determinations for substantial evidence.” Id. The Court of Appeals “directly reviews the decision of the IJ while considering the additional comment made by the BIA.” Ma pouya v. Gonzales, 487 F.3d 396, 405 (6th Cir.2007). “Although this Court reviews the BIA’s legal conclusions de novo, it must defer to the BIA’s reasonable interpretations of the INA.” Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir.2008) (quoting Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir.2005)). “Factual findings are reviewed under a substantial evidence standard ‘in which we uphold a BIA determination as long as it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Id. (quoting Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004)); Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir.2007). “Under this deferential standard, the court may not reverse the Board’s determination simply because we would have decided the matter differently.” Koulibaly, 541 F.3d at 619 (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003)) (internal quotation marks and citations omitted). “Unless ‘any reasonable adjudicator would be compelled to conclude to the contrary,’ the BIA’s findings of fact are ‘conclusive.’ ” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). Facts relevant to credibility determinations as applied to withholding of removal and relief under the CAT are reviewed under this same standard. Id. (citing Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004)) (applying the substantial evidence standard to a credibility determination); Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir.2006) (applying § 1252(b)(4)(B) to a decision requesting withholding under the Act and the" }, { "docid": "22254662", "title": "", "text": "Amir Br. at 11. In this case, the question of whether to admit or not admit evidence is not a constitutional question nor one involving statutory construction. Thus, we do not have jurisdiction to review Amir’s asylum claim. III. WITHHOLDING OF REMOVAL CLAIMS A. Standard of Review We apply the same standard of review for withholding of removal claims made under the INA and the CAT. In reviewing the BIA’s decision on a request for withholding of removal under the INA, we reverse only when the BIA’s decision against withholding is “manifestly contrary to law.” Almuhtaseb, 453 F.3d at 749 (quoting 8 U.S.C. § 1252(b)(4)(C)). “To reverse the BIA’s determination, we must find that the evidence ‘not only supports a contrary conclusion, but indeed compels it.’ ” Id. (quoting Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.2004)). “[Fjactual findings of the IJ are reviewed under the substantial-evidence standard, and we will not reverse those findings ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir.2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). B. Withholding of Removal Under the INA Amir was denied withholding of removal under 8 U.S.C. § 1231(b)(3): To prevail on a petition for withholding of removal under the INA, an alien must show that there is a “clear probability,” that is, that “it is more likely than not,” that [ ]he would be subject to persecution on the basis of one of [] five grounds [race, religion, nationality, membership in a particular social group, or political opinion] were [ ]he removed from this country. Almuhtaseb, 453 F.3d at 749 (internal quotation marks omitted) (quoting Liti v. Gonzales, 411 F.3d 631, 640-41 (6th Cir.2005)). In denying Amir’s petition for withholding of removal under the INA, the IJ determined that Amir lacked credibility, but even if believed, Amir was not entitled to withholding of removal, because he failed to demonstrate that he would be persecuted if he were to return to Indonesia. 1. Credibility “Credibility determinations are considered findings of fact, and are reviewed under the substantial[-]evidenee standard.”" }, { "docid": "23264292", "title": "", "text": "task is to ascertain whether substantial evidence supports the BIA’s determination that Abdulmunaem and Salah failed to sustain their burdens of establishing eligibility for asylum and the withholding of removal. Where, as here, the BIA reviews the IJ’s decision and issues a separate opinion, rather than summarily affirming the IJ’s decision, we review the BIA’s decision as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir.2007). To the extent that the BIA has adopted the IJ’s reasoning, however, we also review the IJ’s decision. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). Questions of law are reviewed de novo, but substantial deference is given to the BIA’s interpretation of the INA and applicable regulations. Morgan, 507 F.3d at 1057. “The BIA’s interpretation of the statute and regulations will be upheld unless the interpretation is arbitrary, capricious, or manifestly contrary to the statute.” Id. (citation and internal quotation marks omitted). When reviewing administrative findings of fact, we utilize the substantial-evidence standard. Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir.2007). Under this standard, we must affirm the factual findings of the IJ (as affirmed by the BIA) if the findings are supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We may not reverse such findings simply because we would have decided them differently. Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir.2005). Rather, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). In addition, because the IJ in the present case found that Abdulmunaem and Salah were credible, we will accept the factual statements in the petitions and testimony as true. See Gilaj v. Gonzales, 408 F.3d 275, 285-86 (6th Cir.2005). B. Asylum 1. Timeliness review The first issue raised by Abdulmunaem and Salah is whether the IJ failed to afford them due process by not excusing the" }, { "docid": "22451954", "title": "", "text": "U.S.C. § 1231(b)(3); INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)). A “clear probability” has been defined as more than a 50 percent likelihood of persecution. Stevie, 467 U.S. at 413, 104 S.Ct. 2489. The administrative findings of fact on a withholding application “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Here, the IJ concluded that Mapouya was not entitled to withholding of removal, but provided no legal analysis or reasoning for his conclusion. Although “an applicant who fails to meet the statutory eligibility requirements for asylum must necessarily fail to meet the requirements for withholding of removal,” Ben Hamida, 478 F.3d at 741 (citing Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005)), the IJ failed to cite even this well-settled proposition to support his withholding conclusion. As a corollary, the IJ’s erroneous adverse credibility finding also underlies his withholding of removal denial. Therefore the BIA or IJ hearing the case on remand must also analyze Mapouya’s withholding of removal claim after making a proper credibility determination. D. Petitioner’s Application for Relief Pursuant to the Conventions Against Torture Mapouya also petitions for review of the denial of his Convention relief claim. To establish entitlement to such relief, an applicant must prove “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Singh v. Ashcroft, 398 F.3d 396, 404 (6th Cir.2005) (citing Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004) (in turn quoting 8 C.F.R. § 208.16(c)(2))). A claim under The Convention involves a “separate question of the threat of torture without regard to the enumerated ground for asylum.” Karomi v. Gonzales, 168 Fed.Appx. 719, 729 (6th Cir.2006). See also Ben Hamida, 478 F.3d at 741 (“An applicant seeking relief under [The Convention] does not need to show that torture will occur on account of one of the five statutory grounds listed [in the INA]”). “It is possible, therefore, for an applicant for asylum to succeed on a [Convention] claim even" }, { "docid": "22418997", "title": "", "text": "Vasha. On March 27, 2003, pursuant to 8 C.F.R. § 1003.1(e)(5), a single member of the BIA affirmed the IJ’s decision, with the exception of the Frivolous Finding Order. Vasha now petitions this court for review of the denial of his asylum and withholding of removal claims. II. ANALYSIS A. Adverse Credibility Determination Yasha argues in his petition that the BIA erred in upholding the IJ’s adverse credibility conclusion. We have stated that “Credibility determinations are considered findings of fact, and are reviewed under the substantial evidence standard.” Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). Under that standard, findings of fact are treated as “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Applying this deferential standard to Vasha’s case, we conclude that the IJ’s credibility finding was supported by the evidence, and therefore, the record does not compel a contrary result. Under the INA, the Attorney General may grant asylum to an alien who qualifies as a “refugee,” which is defined as one “who is unable or unwilling to return to ... [his or her home country] because of persecution or a well-founded fear of persecution on account of. race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). An applicant for asylum bears the burden of demonstrating that “persecution is a reasonable possibility should he be returned to his country of origin.” Perkovic v. INS, 33 F.3d 615, 620 (6th Cir.1994) (internal quotation omitted). The applicant need not demonstrate that he will probably be persecuted if returned because “[o]ne can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.” INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). “The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.13(a). In this case, the BIA adopted the reasoning of the IJ," }, { "docid": "1364130", "title": "", "text": "country conditions that they submitted. They further argue that the BIA’s conclusion that the family had not been singled out and that there was no pattern or practice of persecution was not based on the record. The family also challenges the BIA’s denial of their CAT claim, arguing that the BIA’s finding that the family would not be tortured is not supported by substantial evidence. A. Withholding of Removal “When the BIA adopts the IJ’s opinion and discusses some of the bases for the IJ’s decision, we have authority to review both the IJ’s and the BIA’s opinions.” Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir.2006). We begin with the family’s withholding of removal claim. We review the BIA’s withholding of removal determinations under the deferential substantial evidence standard. Fesseha v. Ashcroft, 338 F.3d 13, 18 (1st Cir.2003); see also Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). Under this standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). To qualify for withholding of removal, “the burden of proof is on the applicants] ... to establish that [their] life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.16(b); see • also 8 U.S.C. § 1231(b)(3)(A). Applicants can carry this burden by demonstrating past persecution, which gives rise to a rebutta-ble presumption of future persecution, or by showing that it is “more likely than not” that they will face future persecution based on one of the statutory grounds. 8 C.F.R. § 208.16(b)(l)(i), (b)(2); see also Sela v. Mukasey, 520 F.3d 44, 46 (1st Cir.2008). In this case, substantial evidence supports the conclusion that Limani and Silmi failed to establish past persecution or a clear probability of future persecution. First, both Limani and Silmi alleged only “isolated incident[s] without violence or detention,” which “do not constitute persecution.” Sela, 520 F.3d at 46 (quoting Ferdinandus v. Gonzales, 504 F.3d 61, 63 (1st Cir.2007)) (internal quotation marks" }, { "docid": "1850203", "title": "", "text": "he was tortured in the past in China or that any government official would torture him upon return. Thus, the BIA also denied Zhao’s request for withholding of removal under the CAT. The BIA “dismissed” Zhao’s appeal on August 9, 2007. Zhao now appeals the BIA’s decision. II. Law And Analysis A. Withholding of Removal under the Act and the CAT To establish a claim for withholding of removal under section 241(b)(3)(B) of the Act, an applicant must demonstrate a clear probability that his life or freedom would be threatened in the country directed for removal on account of his race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also footnote 2, supra. A person who has been forced to abort a child, undergo sterilization or who has been persecuted for refusal to undergo such a procedure shall be deemed to have been persecuted on account of political opinion. 8 U.S.C. § 1101(a)(42); In re X-P-T-, 21 I & N Dec. 634 (BIA 1996). A person whose spouse has been forced to undergo an abortion or sterilization procedure can also establish past persecution. In re C-Y-Z-, 21 I & N Dec. 915 (BIA 1997). To establish eligibility for withholding of removal under the CAT, the applicant must show he would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c). See also footnote 2, supra. B. Standard of Review When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as supplemented by the BIA, becomes the basis for review. Ka v. Gonzales, 236 Fed.Appx. 189, 191 (6th Cir. 2007) (citing Singh v. Ashcroft, 398 F.3d 396, 400-01 (6th Cir.2005)). “This court reviews any legal conclusions de novo and factual findings and credibility determinations for substantial evidence.” Id. The Court of Appeals “directly reviews the decision of the IJ while considering the additional comment made by the BIA.” Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir.2007). “Although this Court reviews the BIA’s legal conclusions de" }, { "docid": "22215531", "title": "", "text": "the IJ’s decision without opinion under § 1003.1(e)(4). The streamlined-affirmance-without-opinion procedure is not a dismissal, but instead a review of the merits of an appeal. See Denko v. INS, 351 F.3d 717, 729 (6th Cir.2003) (noting that affirmance-withoutopinion cases receive full consideration from the BIA). By affirming the IJ’s decision without opinion under § 1003.1(e)(4) rather than summarily dismissing it under § 1003.1(d)(2)(A), the BIA found that Hassan had satisfied the specificity requirement through his notice of appeal. Furthermore, the five grounds outlined in his notice of appeal to the BIA are the same arguments presented in his petition to this court. Therefore, because the BIA reached the merits of Hassan’s appeal, we conclude that he properly exhausted all of his administrative remedies, and thus we have jurisdiction to entertain his petition for review. B. The IJ’s Decision Proceeding to the merits of Hassan’s claims, we note that because the BIA affirmed the IJ’s decision without opinion, “we review the IJ’s decision as the final agency decision.” Denko, 351 F.3d at 726. 1. Adverse Credibility Finding The first issue which Hassan raises in his petition is that the IJ erred in denying his request for asylum, withholding of removal, and relief under CAT on the grounds that his testimony was incredible. We have held that ‘£ [c]redibility determinations are considered findings of fact, and are reviewed under the substantial evidence standard.” Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). Under that standard, findings of fact are treated as “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). In this case, we cannot say that review of the record compels a contrary result. The Attorney General may grant asylum to an alien who can demonstrate an unwillingness to return to his or her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). “The testimony of the applicant, if" }, { "docid": "22818353", "title": "", "text": "or freedom would be threatened ... because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An applicant “who has failed to establish the less stringent well-founded fear standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal.” Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir.2008) (quotations and citation omitted). To be eligible for protection under CAT, the applicant must show that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(1), (2); see Gandziami-Mickhou, 445 F.3d at 354. The likelihood of torture, however, need not be tied to a protected ground under CAT. See Dankam v. Gonzales, 495 F.3d 113, 115-16 (4th Cir.2007). “We review the BIA’s administrative findings of fact under the substantial evidence rule, and we are obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary.” Haoua v. Gonzales, 472 F.3d 227, 231 (4th Cir.2007). We review legal issues de novo. Abdel-Rahman v. Gonzales, 493 F.3d 444, 449 (4th Cir.2007). The agency decision that an alien is not eligible for asylum is “conclusive unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). When, as here, the BIA adopts the IJ’s decision and includes its own reasons for affirming, we review both decisions. Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.2004). In considering Marynenka’s petition for review, we “presume that [she] testified credibly” because neither the IJ nor the BIA made an express adverse credibility determination. Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir.2007). Even though a few of the IJ’s statements im plied doubt about certain aspects of Marynenka’s testimony, both the IJ and the BIA rested then.' decisions on the lack of persuasive corroborating evidence. At oral argument the government conceded that Marynenka’s testimony must be taken as credible because the IJ did not make an" }, { "docid": "23004542", "title": "", "text": "(explained in detail below) was inconsistent with his application, corroborative witnesses, and a corroborative document pertaining to his incarceration. The IJ fur ther found that even if Rached were to be believed, nothing in his story would have risen to the level of past persecution. On January 10, 2006, the Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision in a one-page order. The BIA agreed with the IJ’s conclusion that Rached was not credible and his explanations for the inconsistencies in his story were unavailing. We have jurisdiction to review the BIA’s final order of removal pursuant to Section 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1). II A The IJ, acting on behalf of the Attorney General, has discretionary authority to grant asylum to those applicants who qualify as “refugees.” 8 U.S.C. § 1158(b)(1). Thus, the determination of whether to grant asylum is broken down into two inquiries: (1) whether the applicant qualifies as a “refugee” under section 1101(a)(42)(A); and (2) “whether the applicant merits a favorable exercise of discretion by the Attorney General.” Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (internal quotation marks and citations omitted). A refugee is someone unwilling to return to his or her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). We review factual findings, which include adverse credibility findings, under the substantial evidence standard. Yu v. Ashcroft, 364 F.3d 700, 703 & n. 2 (6th Cir.2004). These findings “are conclusive unless, any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). An adverse credibility finding should be based on the heart of an asylum applicant’s claim, not “based on an irrelevant inconsistency.” Sylla v. INS, 388 F.3d 924, 926 (6th Cir.2004) (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 619 n. 2 (6th Cir.2004)). Because the BIA issued a brief order which adopted the IJ’s findings, we review the IJ’s decision directly. Singh v. Ashcroft, 398 F.3d 396, 401" }, { "docid": "13631837", "title": "", "text": "of future persecution, he denied her application for asylum and withholding of removal. Similarly finding no evidence to indicate that petitioner would be tortured if returned to China, the IJ denied her CAT relief. D. Petitioner’s BIA Appeal Yan Fang Zhang appealed the IJ’s decision to the BIA. While that appeal was pending, petitioner’s counsel, by letter dated May 2, 2003, advised the BIA that, on April 23, 2003, the agency had granted to Yan Fang Zhang’s husband asylum and withholding of removal apparently based on the same family planning claim. On September 8, 2003, the BIA summarily affirmed the IJ’s decision in petitioner’s case, making no mention of the contrary ruling in her husband’s case. II. Discussion A. Standard of Review Where, as in this case, the BIA summarily affirms an IJ decision denying relief from removal, see 8 C.F.R. § 1003.1(e)(4), we treat the IJ’s ruling as the final agency determination and review it directly, see Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review de novo any questions of law. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 543-44 (2d Cir.2005). The IJ’s factual findings, however, “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we will affirm the IJ’s factual determinations provided they are “supported by ‘reasonable, substantial, and probative’ evidence in the record,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)), and were “not reached arbitrarily or capriciously,” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 74 (2d Cir.2004). B. Asylum and Withholding of Removal To qualify for asylum, “a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. at 70 (quoting 8 U.S.C. § 1101(a)(42)). The standard for withholding of removal is higher, see id. at 71, requiring a showing that “it is more likely than not” that the applicant’s “ ‘life or" }, { "docid": "22215532", "title": "", "text": "Finding The first issue which Hassan raises in his petition is that the IJ erred in denying his request for asylum, withholding of removal, and relief under CAT on the grounds that his testimony was incredible. We have held that ‘£ [c]redibility determinations are considered findings of fact, and are reviewed under the substantial evidence standard.” Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). Under that standard, findings of fact are treated as “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). In this case, we cannot say that review of the record compels a contrary result. The Attorney General may grant asylum to an alien who can demonstrate an unwillingness to return to his or her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). “The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.13(a). In this case, the sole ground for Hassan’s asylum claim is his testimony that a member of Sabri A1 Bamma threatened to kill Hassan if he did not join the organization and that Sabri AI Bamma is still looking for him. The IJ found Hassan to be “completely unbelievable” and his testimony “internally inconsistent,” and thus denied his request for relief. J.A. at 25, 38 (IJ Decision & Order at 7, 21). We have stated that though “an adverse credibility finding is afforded substantial deference, the finding must be supported by specific reasons.” Sylla, 388 F.3d at 926. Moreover, we have noted that “[a]n adverse credibility finding must be based on issues that go to the heart of the applicant’s claim. They cannot be based on an irrelevant inconsistency. If discrepancies cannot be viewed as attempts by the applicant to enhance his claims of persecution, they have no bearing on credibility.” Id. (internal quotations omitted). In this case, the" } ]

[ { "docid": "14566936", "title": "", "text": "*2 (S.D.N.Y.1984); cf. Schrecker v. United States Dep’t of Justice, 14 F.Supp.2d 111, 119 (D.D.C.1998). Moreover, the FBI appears in many cases to have searched EL-SUR without being asked to do so. See Hart v. FBI, 1996 WL 403016 at *2 (7th Cir.1996); Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978); Canning v. United States Dep’t of Justice, 848 F.Supp. 1037, 1050 (D.D.C.1994). The Department also asserts that the existence of ticklers in its archives is “speculative” because ticklers are not generally preserved for posterity and also might not contain information distinct from what the FBI already found within the CRS. It is true that Campbell has claimed only that a tickler existed at one time, not that it exists today or that it contains unique information. Yet in any FOIA request, the existence of responsive documents is somewhat “speculative” until the agency has finished looking for them. As the relevance of some records may be more speculative than others, the proper inquiry is whether the requesting party has established a sufficient predicate to justify searching for a particular type of record. Cf. Meeropol v. Meese, 790 F.2d 942, 953 (D.C.Cir.1986). Here, the FBI does not deny that such a predicate exists, rendering its “speculation” claim irrelevant. Cf. Oglesby v. United States Dep’t of the Army, 79 F.3d 1172, 1185 (D.C.Cir.1996); Schrecker, 14 F.Supp.2d at 119. For these reasons we conclude that the district court erred in finding that an adequate search had been made, and remand the ease so that the FBI can be afforded an opportunity to search for tickler and ELSUR records responsive to Campbell’s FOIA request, and to proceed as the results of such searches require. B. Exemption 1 (National Security). FOIA authorizes an agency to withhold requested material if it is “properly classified” in the “interest of national defense or foreign policy” pursuant to an applicable executive order. 5 U.S.C. § 552(b)(1). In the instant case, the FBI invoked the national security exemption to redact documents and withhold at least two entire documents. The sole justification in the record for the FBI’s classification" } ]

[ { "docid": "21039754", "title": "", "text": "has no responsive records. Even when a declaration describes the details of an extensive search, Plaintiff insists that the agency has responsive records that it is hiding from her in bad faith, often pursuant to the alleged German Nazi conspiracy, {compare Declaration 65 from the Defense Threat Reduction Agency, with Plaintiffs Affidavit in Opposition to Defendants’ Motion at 358ff). As this Court stated in a previous case filed by Plaintiff, Schwarz v. National Security Agency, et al., No. 98-0066 (D.D.C. July 20,1998), The FOIA ... does not require an agency to conduct an exhaustive search for all documents responsive to a request, but rather a reasonable search for requested records using “methods reasonably expected to produce the information requested.” Oglesby y. United States Dep’t of the Army, 920 F.2d 57, 58 (D.C.Cir.1990). “[I]n the absence of countervailing evidence or apparent inconsistency of proof, affidavits that ex plain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). The affidavit need not “set forth with meticulous documentation the details of an epic search for the requested records,” Perry, 684 F.2d at 127, but must show only “that the search method was reasonably calculated to uncover all relevant documents.” Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). Moreover, “[m]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.” Safe-Card Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991). Accord Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 552 (D.C.Cir.1994). The district court in this earlier case concluded that the defendants’ affidavits were sufficient and that Plaintiff had offered no evidence that responsive records existed and no evidence of bad faith. The grant of summary judgment for the Defendants was affirmed by the Court of Appeals in Schwarz v. National Security Agency, et al., 172 F.3d 921 (D.C.Cir.1998). The memorandum opinion of the Court of Appeals emphasized that “[t]he fact" }, { "docid": "476706", "title": "", "text": "by principles of reasonableness. Oglesby, 920 F.2d at 68. To obtain summary judgment on the issue of the adequacy of the records search, “the agency must show, viewing the facts in the light most favorable to the requester, that ... ‘[it] has conducted a “search reasonably calculated to uncover relevant documents.” ’ ” Steinberg v. Dep’t. of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. An agency must demonstrate that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. See Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). An agency’s search need not be exhaustive, merely reasonable. See W. Ctr. for Journalism v. Internal Revenue Serv., 116 F.Supp.2d 1, 8 (D.D.C.2000) (citing Shaw v. Dep’t of State, 559 F.Supp. 1053, 1057 (D.D.C.1983)). Plaintiff makes two specific arguments with respect to the adequacy of Defendants’ search, which the Court shall address in turn. 1. Defendants did not demonstrate that February 5, 2004. was a reasonable cut-off date for Defendants’ search Accordingly to the Declaration of Susan R. Cornell, the Freedom of Information Officer at NIH since May 13, 1999, “[t]he NCRR FOI Coordinator began the search for the responsive records on February 5, 2004. Current HHS and Department of Justice guidance is that the cut-off dates for searches are the day the search begins. Because NCRR began the search for the responsive records on February 5, 2004, that date provided a time scope for the search.” Defs.’ Mot. for Part. Summ. J., Ex. A ¶ 5 (Declaration of Susan R. Cornell, March 16, 2005) (hereinafter, “Cornell" }, { "docid": "8869552", "title": "", "text": "Defenders of Wildlife v. United States Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009) (citations omitted). In a FOIA case, the Court may grant summary judgment based on the information provided in an agency’s supporting affidavits or declarations when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C.2003). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’ ” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C.Cir.1981)). B. The DEA’s Search for Responsive Records Was Adequate Upon receiving a request under the FOIA, the agency must search its records for responsive documents. See 5 U.S.C. § 552(a)(3)(A). “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. If the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is" }, { "docid": "14799785", "title": "", "text": "‘purely speculative claims about the existence and discoverability of other documents.’ ” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C.Cir.1981)). B. Searches for Records Responsive to Plaintiffs FOIA Requests “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998) (FOIA requires agency to conduct search using methods reasonably expected to produce requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. If the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542. 1. State Department The DOS’s Office of Information Programs and Services (“IPS”) responds to FOIA requests. Galovich Decl. ¶¶ 1-2. Upon receipt of a FOIA request, IPS staff “evaluate[] the request and determinen which offices, overseas posts, or other records systems ... may reasonably be expected to contain” responsive records. Id. ¶ 13. The “description of the records requested ... [and] the nature, scope, and complexity of the request” are considered in determining whether or where responsive records might be maintained. Id. With respect to plaintiffs Request No. 200807238 for Ms. Dunham’s passport applications, IPS staff “determined that the Office of Passport Services would be the only office that would reasonably be expected to maintain the records requested” because “Passport Services" }, { "docid": "11620021", "title": "", "text": "declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Id. (internal citation and quotation omitted). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s inspection requirements.” Goland v. CIA 607 F.2d 339, 352 (D.C.Cir.1978)(internal citation and quotation omitted). Discussion Adequacy of the Agency Search In order to obtain summary judgment on the issue of the adequacy of a FOIA search, an agency must show, “viewing the facts in the light most favorable to the requester, that ... [it] ‘has conducted a search reasonably calculated to uncover all relevant documents.’ ” Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 552 (D.C.Cir.1994) (quoting Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. The agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990); see Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68. The search here was adequate. The BOP records all calls on the Inmate Telephone System (“ITS”) and as a general rule maintains the recorded conversations for 180 days. Kosiak Deck, ¶ 5. The BOP does not transcribe the conversations. Id., ¶ 7. The calls requested by plaintiff were recorded in an electronic digital audio format. Id., ¶ 18 n. 2. In response to a FOIA" }, { "docid": "8869557", "title": "", "text": "documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983) (citing Perry v. Block, 684 F.2d at 128). The DEA’s inability to locate all of the records plaintiff desires does not defeat summary judgment so long as the DEA “establishes] that [its staff] located no records responsive to plaintiffs request after a reasonable search using ‘methods reasonably expected to produce the information requested.’ ” Davidson v. Envtl. Prot. Agency, 121 F.Supp.2d 38, 39 (D.D.C.2000) (quoting Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C.Cir.1990)); see Steinberg v. United States Dep’t of Justice, 23 F.3d at 551 (noting that the agency’s search for responsive records depends not on “whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate”). On this record, the Court concludes that the methods by which the DEA staff searched for responsive records were reasonable under the circumstances. Plaintiffs speculation as to the existence of additional records, absent support for his allegations of agency bad faith, see, e.g., Maynard v. Central Intelligence Agency, 986 F.2d 547, 560 (1st Cir.1993), does not render the searches inadequate. See, e.g., Judicial Watch, Inc. v. United States Dep’t of Health & Human Servs., 27 F.Supp.2d 240, 244 (D.D.C.1998) (finding that “plaintiffs unsubstantiated suspicions ... therefore, are insufficient to call into question the adequacy of [the agency’s] search and the truthfulness of its affidavit”). C. Documents Withheld Pursuant to Statutory Exemptions Under the FOIA, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the [FOIA’s] inspection requirements.” Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.Cir.2001). In addition to the Seidel Declaration," }, { "docid": "476705", "title": "", "text": "months after IDA had initiated this action and one year after IDA submitted its FOIA request.”). The United States Court of Appeals for the District of Columbia has held that [a] response is sufficient for purposes of requiring an administrative appeal if it includes: the agency’s determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse. Assuming an agency’s initial response complies with these requirements, the FOIA requester must appeal to the head of the agency. Oglesby, 920 F.2d at 65 (internal citations omitted). Defendants’ responses prior to Plaintiffs filing suit neither constituted an actual agency decision with respect to the entire request, nor did they notify Plaintiff of its right to appeal. Accordingly, no administrative appeal was required. B. Defendants Have Not Met the Standard for Summary Judgment By Conducting An Adequate Document Search In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68. To obtain summary judgment on the issue of the adequacy of the records search, “the agency must show, viewing the facts in the light most favorable to the requester, that ... ‘[it] has conducted a “search reasonably calculated to uncover relevant documents.” ’ ” Steinberg v. Dep’t. of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. An agency must demonstrate that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. See Campbell v. U.S." }, { "docid": "12150767", "title": "", "text": "however, is that an agency shall disclose such records that would be required to be disclosed pursuant to FOIA. 5 U.S.C. § 552a(b)(2). In actions seeking documents under both FOIA and the Privacy Act, a defendant agency must show that the information is properly subject to both FOIA and Privacy Act exemptions. See Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987). Ill: DISCUSSION As with the Background section, in the interest of organizational clarity, the Court shall discuss each relevant agency’s response to Plaintiffs FOIA/PA request in turn. A The Defense Intelligence Agency 1. The DIA Has Met the Standard for Summary Judgment By Conducting An Adequate Search for Records In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby v. Army, 920 F.2d 57, 68 (D.C.Cir.1990). To obtain summary judgment on the issue of the adequacy of the records search, an agency must show “viewing the facts in the light most favorable to the requester, that ... [it] has conducted a ‘search reasonably calculated to uncover relevant documents.’ ” Steinberg, 23 F.3d at 551 (quoting Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. An agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68; see Campbell v. DOJ, 164 F.3d 20, 27 (D.C.Cir.1998). An agency’s search need not be exhaustive, merely reasonable. See W. Ctr. for Journalism v. Internal Revenue Serv., 116 F.Supp.2d 1, 8 (D.D.C.2000) (citing Shaw v. State Dep’t, 559 F.Supp. 1058, 1057 (D.D.C.1983)). As discussed above, Mr. Kinsey’s Declaration describes in non-conclusory terms the efforts the DIA undertook in searching" }, { "docid": "21838234", "title": "", "text": "S.Ct. 2548, 91 L.Ed.2d 265 (1986). Factual assertions in the moving party’s affidavits may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992). In a FOIA case, the court may grant summary judgment based on the information provided in affidavits or declarations when the affidavits or declarations describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and dis-coverability of other documents.’ ” Safe-Card Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C.Cir.1981)). B. FBIHQ’s Searches for Responsive Records “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998) (requiring agency to conduct its search using methods reasonably expected to produce requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with FOIA. Id. at 127. But if the record" }, { "docid": "8869553", "title": "", "text": "its records for responsive documents. See 5 U.S.C. § 552(a)(3)(A). “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. If the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d at 542; see also Valencia-Lucena v. United States Coast Guard, 180 F.3d at 326. DEA staff “broadly construed” plaintiffs FOIA requests as seeking “any and all investigative information that referenced or related to him,” Seidel Decl. ¶ 12, and determined that records of this nature were “reasonably likely to be found in investigative files contained in the DEA Investigative Reporting and Filing System (IFRS)[.]” Id. ¶ 13. The DEA IFRS “contains all administrative, general, and investigative files compiled by DEA for law enforcement purposes.” Seidel Decl. ¶ 13. “The DEA Narcotics and Dangerous Drugs Information System (NADDIS) is the index to and the practical means by which DEA retrieves investigative reports and information from IFRS.” Id. ¶14. NADDIS “points to investigative files and particular DEA Reports of Investigation (ROI), DEA Form-6 or other documents” which con tain information regarding a particular subject of investigation. Id. An individual is “indexed and identified in NADDIS by [his] name, Social Security Number, and/or date of birth.” Id. Using the" }, { "docid": "2260471", "title": "", "text": "under this Circuit’s precedent.. 2. Request for Defendants’ Agency Records This determination does not entirely resolve ACC’s FOIA claim since Plaintiff did not only seek data from the Zhang Study’s grantees. In addition, ACC requested broader categories of documents in the Agency’s possession. See FOIA Request at 1-2. In Count I, Plaintiff alleges that Defendants’ search of their own records for these documents was inadequate. See Compl., ¶ 27 (“[D]espite explicit references to NCI ... NIH referred Plaintiffs request only to ... NIEHS for response. Accordingly, Defendants did not search the records of any NIH entity other than NIEHS for information responsive to the request.”); see also id., ¶ 32 (“Defendants are in possession or control of, or have an obligation to obtain, Requested Records.”). The Court must also decide, therefore, whether this remaining component of Plaintiffs FOIA claim survives. To fulfill its obligation under FOIA, an agency must “demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C.Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 .(D.C.Cir.1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). The adequacy of an agency’s search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. Id. Plaintiff has sufficiently alleged that the Agency’s search was not adequately calculated to recover all relevant documents. Defendants, furthermore, acknowledge that' they have not yet submitted the requisite affidavits necessary to carry their burden on the adequacy of their search. See Reply. at 3 (“To the extent that Plaintiff is challenging the agency’s withholding or search, the agency will file a Motion for Summary Judgment" }, { "docid": "22389434", "title": "", "text": "disclosable and which are allegedly exempt.’ ” Wilderness Soc’y v. Dep’t of Interior, 344 F.Supp.2d 1, 19 (D.D.C.2004) (quoting Animal Legal Defense Fund v. Dep’t of the Air Force, 44 F.Supp.2d 295, 301 (D.D.C.1999)) (emphasis in original). DHS has not done this. Rather, it simply states that as to all of the withheld documents, “all information withheld ... is not reasonably segregable be cause it is so intertwined with protected material that segregation is not possible.” Ortiz Decl. ¶ 25. This explanation is insufficient, because it “does not ‘show with reasonable specificity why the documents cannot be further segregated’ and additional portions disclosed.” Hertzberg v. Veneman, 273 F.Supp.2d at 90-91 (citing Armstrong v. Executive Office of the President, 97 F.3d 575, 578 (D.C.Cir.1996)). For all of these reasons, the Court has determined that DHS’s Vaughn Index is legally insufficient. B. Adequacy of Search “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Campbell v. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998) (FOIA requires agency to conduct search using methods reasonably expected to produce requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Judicial Watch, Inc. v. Dep’t of Justice, 185 F.Supp.2d 54, 63 (D.D.C.2002). While the affidavits or declarations submitted by the agency need not “set forth with meticulous documentation the details of an epic search for the requested records,” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982), they must “describe what records were searched, by whom, and through what processes,” Steinberg v. Dep’t of Justice, 23 F.3d at 552, and must show “that the search was reasonably calculated to uncover all relevant documents.”" }, { "docid": "18490373", "title": "", "text": "and (b). As part of its showing, an agency must also demonstrate that when “viewing the facts in the light most favorable to the requester, ... [it] ‘has conducted a search reasonably calculated to uncover all relevant documents.’ ” Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 552 (D.C.Cir.1994) (quoting Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). The agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). An “agency generally need not ‘search every record system,’ ... but ‘cannot limit its search to only one record system if there are others that are likely to turn up the information requested.’ ” Campbell v. United States Dep’t of Justice, 164 F.3d 20, 27-28 (D.C.Cir.1998) (quoting Oglesby, 920 F.2d at 68). Furthermore, the adequacy of a search is not determined by its results, but by the method of the search itself, Weisberg, 745 F.2d at 1485, and a court is guided in this determination by principles of reasonableness, Oglesby, 920 F.2d at 68. An agency’s failure to find a particular document does not undermine the determination that the search was adequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C.Cir.2004); Nation Magazine, Washington Bureau v. United States Customs Serv., 71 F.3d 885, 892 n. 7 (D.C.Cir.1995). To show that its search was reasonable, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. With respect to responsive documents located but not released or not released in full, a federal agency may meet the standard required for summary judgment solely on the basis of information contained in affidavits or declarations provided that they (1) “describe the documents and the" }, { "docid": "12105879", "title": "", "text": "Summary Judgment, the Court shall address the adequacy of Defendant’s search for records, the exemptions invoked by Defendant that remain in dispute, and Defendant’s segregability analysis. The Court shall then address Plaintiffs Motion for Reconsideration based on newly discovered evidence. Ultimately, the Court concludes that Defendant has met its burden of showing that it properly complied with its obligations under FOIA and the Privacy Act, and that Plaintiff has not met its burden of showing how newly discovered evidence warrants reconsideration of the Court’s January 29, 2008 decision. A. Defendant Has Demonstrated That It Conducted An Adequate Search for Records In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby v. Army, 920 F.2d 57, 68 (D.C.Cir.1990). To obtain summary judgment on the issue of the adequacy of the records search, an agency must show “viewing the facts in the light most favorable to the requester, that ... [it] has conducted a ‘search reasonably calculated to uncover relevant documents.’ ” Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. An agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68; see also Campbell v. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). An agency’s search need not be exhaustive, merely reasonable. See W. Ctr. for Journalism v. Internal Revenue Serv., 116 F.Supp.2d 1, 8 (D.D.C.2000) (citing Shaw v. State Dep’t, 559 F.Supp. 1053, 1057 (D.D.C.1983)). Plaintiffs Motion for Summary Judgment includes a perfunctory, two-paragraph argument concerning the adequacy of Defendant’s search for responsive records. See" }, { "docid": "17958555", "title": "", "text": "decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). The D.C. Circuit previously held “courts may grant summary judgment on the basis of agency affidavits that contain ‘reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ ” Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 678 F.3d 926, 931 (D.C.Cir.2012) (hereinafter “EPIC”) (citing Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982)). c. Reasonableness of Search The D.C. Circuit noted that the standard of review related to the agency search for records in a FOIA cases is whether “the materials submitted by the agency satisfactorily demonstrate the apparent adequacy of the search conducted.” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). To meet this burden, “the agency must demonstrate that it has conducted a ‘search reasonably calculated to uncover all relevant documents.’ ” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). Further, the adequacy of the search “is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.Cir.2003) (citing Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994)). Plaintiffs fail to address the search conducted by defendant in this case. After reviewing defendant’s description of its search, the Court concludes that defendant has shown that it “made a good faith effort to conduct a search for the requested records, using methods which [were] reasonably expected to produce the information requested.” Def.’s Mot. Summ. J. 13-18; Oglesby v. U.S. Dep’t. of Army, 920 F.2d 57, 68 (D.C.Cir.1990) (citations omitted). d. Exemptions Claimed Next, defendant argues that it properly applied exemptions to withhold the records responsive to plaintiffs FOIA request. Def.’s Mot. Summ. J., ECF No. 14, at 18. Specifically, defendant asserts that the records were exempt from disclosure primarily under § 552(b)(7)(A), as well as under §• 552(b)(1), (b)(3), (b)(6), (b)(7)(C), and (b)(7)(E). Id. at 24-25. It" }, { "docid": "2404156", "title": "", "text": "5 & Exh. 2. On January 26, 1989, Blanton made substantially similar requests to the Birmingham Field Office of the FBI. See Pl.’s Compl. ¶ 24 & Exh. 17. On March 29, 1990, the FBI advised Blanton that it had reviewed 1,430 pages of documents; it released 329 pages to him and withheld the remainder, invoking various exemptions under the FOIA. See id. ¶ 16. On July 23, 1990, the FBI released 255 additional pages out of 827 pages it had reviewed from the Birmingham Field Office. See id. ¶¶ 27, 31. It released an additional seventeen pages out of 176 pages reviewed on December 5, 1990, and an additional 135 pages out of 509 pages reviewed on February 1,1991. See id. ¶¶ 33, 34. II. ADEQUACY OF THE SEARCHES To obtain summary judgment, an agency must show “beyond material doubt ... that it has conducted a search reasonably calculated to uncover the relevant documents.” Weisberg v. U.S. Department of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). It must establish through affidavits or declarations the adequacy of both its search methods (where and how it looked for responsive records) and the scope of its search (what it was looking for). Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). The agency must show that it made a “good faith effort to conduct a search for the requested records, using methods which reasonably can be expected to produce the information requested.” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citing Oglesby v. Department of the Army, 920 F.2d at 68.) In attempting to demonstrate the adequacy of the search, the agency may rely upon “reasonably detailed, nonconclusory affidavits submitted in good faith,” see id.,- and “in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.” Perry v. Block, 684 F.2d at 127. In this case, the FBI has submitted a number of declarations of Robert A. Moran, a special agent with the FBI" }, { "docid": "19784407", "title": "", "text": "judgment as to the portions of records withheld under that Exemption. See Coal, for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 136 (D.C.Cir.2012). Just two disputes remain. First, the Council complains that USCIS has not demonstrated that it conducted an adequate search. Second, the Council objects to USCIS’s application of Exemption 5 and claims that many documents withheld under that Exemption should be turned over to the Council. The Court takes each issue in turn. A. Adequacy of Search “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984) (emphasis in original). The adequacy of an agency’s search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. Id. “If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542. Here, to demonstrate the adequacy of its search, USCIS offers a declaration by Jill Eggleston, Assistant Center Director of USCIS’s FOIA Unit. See Reply, Exh. 1 (Second Decl. of Jill A. Eggleston). She explains that USCIS broke its search here into two steps. First, an officer from US-CIS’s central FOIA office selected which program offices within USCIS to ask for responsive records. Second, the chosen" }, { "docid": "12992699", "title": "", "text": "873 (1974); Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C. 2003). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s inspection requirements.” Goland v. CIA 607 F.2d 339, 352 (D.C.Cir.1978) (internal quotations and citation omitted); see also Students Against Genocide v. Department of State, 257 F.3d 828, 833 (D.C.Cir.2001); Hertzberg v. Veneman, 273 F.Supp.2d at 74. III. DISCUSSION The Department contends that it is entitled to summary judgment because it conducted reasonable searches for responsive records, properly withheld documents pursuant to applicable exemptions, and complied with its segregability obligations. Mr. Beltranena disagrees; he contends that the Department has failed to demonstrate the adequacy of its searches for responsive records, failed to provide a sufficiently detailed justification for withholding thirty-three documents, and failed fully to comply with its segregability obligations with respect to one document. A. Adequacy of Search Upon receipt of a request under the FOIA, an agency must search its records for responsive documents. See 5 U.S.C. § 552(a)(3)(A). “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Department of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Campbell v. U.S. Department of Justice, 164 F.3d 20, 27 (D.C.Cir.1998). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. U.S. Department of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982); Judicial Watch, Inc. v. U.S. Department of Justice, 185 F.Supp.2d 54, 63 (D.D.C.2002). Although the affidavits or declarations submitted by the agency need not “set forth with meticulous documentation the details of an epic search for the requested records,” Perry v. Block, 684 F.2d at 127, they must describe “what records" }, { "docid": "9728748", "title": "", "text": "770, 771 (D.C.Cir.1981)). The defendants have withheld records in full or in part under FOIA Exemptions 2, 3, 5, 6, 7(C), 7(D), and 7(E), see Hardy II Decl. ¶ 12 & Ex. F; Rev. Stearns II Decl. & Ex. A; Rev. Stearns II Decl., Ex. D; Hanson Decl., Ex. A; Little Decl. ¶ 15, yet the plaintiffs opposition to the defendants’ summary judgment motion raises no objection to the decisions to withhold information under any of the claimed exemptions. The court is mindful that the plaintiff is a pro se litigant whose pleadings and other submissions are construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). For this reason, the court relies on the plaintiffs one assertion, that none of the requested records are exempt from disclosure under any provisions of the FOIA, see Pl.’s Opp’n at 3, as a sign that the plaintiff does not concede the defendants’, motion, notwithstanding his utter failure to address substantively any of the claimed exemptions. The court will address each of the claimed exemptions below. B. Defendants’ Searches for Responsive Records “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant, documents.’ ” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998) (noting that FOIA requires an agency to conduct a search using methods reasonably expected to produce the requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. If the record" }, { "docid": "18124390", "title": "", "text": "7. He did, however, pursue an administrative appeal to the OIP with respect to the DEA’s decision to withhold in full 63 pages of responsive records. Id. ¶ 8; PL’s Opp’n at 4. Plaintiff states that his “desire was to concentrate all efforts on the investigation file(s) that resulting in [his] indictment and/or arrest.” PL’s Opp’n at 4. He does not challenge the agency’s motion on this ground, and defendant’s motion will be granted in part. C. Adequacy of Searches Upon receipt of a request under the FOIA, an agency must search its records for responsive documents. See 5 U.S.C. § 552(a)(3)(A). “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C.Cir.1998); Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. See, e.g., Steinberg v. United States Dep’t of Justice, 23 F.3d at 551. To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. On the other hand, if the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d at 542; see also Valencia-Lucena v. U.S. Coast Guard, 180 F.3d at 326. 1. BATFE The Treasury Enforcement Communications System (“TECS”) “is a text-based database[ ] owned by the Bureau of Customs and Border Protection, Department of Homeland Security, which contains information that may be of interest to law enforcement agencies.” Graham Decl. ¶ 73. TECS is used “to identify" } ]

[ { "docid": "14205989", "title": "", "text": "Court focused on whether the claim was central to the bankruptcy process. Importantly, the fact that the claim, if successful, would “augment the bankruptcy estate,” Stern, 131 S.Ct. at 2618 (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 56, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989)), did not create a sufficient nexus to the resolution of the bankruptcy proceeding. ' “Vickie’s claim ... is in no way derived from or dependent upon bankruptcy law; it is a state tort action that exists without regard to any bankruptcy proceeding.” Id. Thus, “Congress may not bypass Article III simply because a proceeding may have some bearing on a bankruptcy case; the question is whether the action at issue stems from the bankruptcy itself or would neees-sarily be resolved in the claims allowance process.” Id. To the same effect, in the wake of Stem, the Ninth Circuit, in Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance Agency, Inc.), 702 F.3d 553, 562 (9th Cir.2012), cert. granted, - U.S. -, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013), held that “the Trustee’s fraudulent conveyance claims are not matters of ‘public right,’ and ipso facto, cannot be decided outside the Article III courts.” Where the “legal action need not necessarily have been resolved in the course of allowing or disallowing the claims against the ... estate .... the claim belonged in an Article III court.” Id. at 564-65. Despite that stringent limitation on the bankruptcy court’s powers, however, the court opined that “by failing to object until the case reached this court,” the appellant “consented to the adjudication of the ... claim by a bankruptcy judge.” Id. at 556. C. Agreeing with the Sixth and Ninth Circuits that the bankruptcy court lacked the constitutional authority to enter final judgment on BPRE’s state-law claims, we must address whether BPRE’s consent to have its claims heard in bankruptcy court cures the constitutional deficiency. We adopt the compelling and thorough reasoning of Waldman, which held that parties cannot consent to such circumvention of Article III that impinges on the structural interests of the Judicial Branch. Wald-man was" } ]

[ { "docid": "9985393", "title": "", "text": "there. II. The Bankruptcy Court’s Authority Sharif argues that the bankruptcy court lacked constitutional authority to enter fi nal judgment, default or otherwise, on WIN’s adversary complaint under the holdings of Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), and In re Ortiz, 665 F.3d 906 (7th Cir.2011). WIN responds that Sharif waived this argument by failing to present it sooner and, through his litigation conduct, consented to final adjudication by the bankruptcy judge. Sharif replies that this issue is not waivable and may be raised at any time. As we discuss later, whether Sharif’s objection to the bankruptcy court’s constitutional authority is waivable is a thorny question. The only two circuits to have addressed the issue head-on since Stem was decided issued their respective decisions after we heard oral argument in this appeal and came to opposite conclusions. In re Bellingham Ins. Agency, Inc., 702 F.3d 553, 566-70 (9th Cir.2012) (waivable), cert. granted, — U.S. -, 133 S.Ct. 2880, — L.Ed.2d-(2013); Waldman v. Stone, 698 F.3d 910, 917-18 (6th Cir.2012) (not waivable), cert. denied, — U.S. -, 133 S.Ct. 1604, 185 L.Ed.2d 581 (2013). On June 24, 2013, the Supreme Court granted a petition for a writ of certiorari in the case from the Ninth Circuit, which raised the issue of whether a Stem objection is waivable. Exec. Benefits Ins. Agency v. Arkison, — U.S. - — , 133 S.Ct. 2880, — L.Ed.2d - (2013). A final answer to that question is likely to be rendered when the Supreme Court decides that case next term. But we think the path to resolution of that issue is sufficiently clear that we should address it now rather than further extending the litigation between Sharif and WIN by waiting for the conclusion of the Executive Benefits case. We therefore proceed to consider Sharif’s appeal, but before addressing the constitutional issues, we must determine whether the bankruptcy court had statutory authority to enter final judgment on WIN’s claims. In re Ortiz, 665 F.3d at. 911; see Stern, 131 S.Ct. at 2604-08. A. Statutory Authority District courts have “original" }, { "docid": "17343063", "title": "", "text": "fee applications. We also agree with the bankruptcy court that these claims fail on their merits. Most of all, we uphold the final judgment on the fee applications. However, we hold that the bankruptcy court erred in entering a final judgment on Frazin’s DTPA state-law counterclaim because it was not necessary to resolve it in the course of ruling on the Attorneys’ fee applications. For this reason, the judgment of the district court affirming the bankruptcy court must be REVERSED in part and AFFIRMED in part. Furthermore, we REMAND this case to the district court for further proceedings consistent with this opinion. We note (though we do not express an opinion) that although the bankruptcy court did not have jurisdiction to make a final judgment on the DTPA claim, the district court may have that authority. See Stern, 131 S.Ct. at 2619-20 (discussing district court authority under 28 U.S.C. §§ 157(c)-(d), 1334(c)); see also Wellness Int’l Network, Ltd. v. Sharif, 727 F.3d 751, 775-77, No. 12-1349, 2013 WL 4441926, at *20-21 (7th Cir. Aug. 21, 2013); Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 565-66 (9th Cir.2012), cert. granted — U.S. —, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013); Waldman v. Stone, 698 F.3d 910, 921-22 (6th Cir.2012), cert. denied — U.S. —, 133 S.Ct. 1604, 185 L.Ed.2d 581 (2013). . The full text of 28 U.S.C. § 157(b)(l)-(2) is as follows: (1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. (2) Core proceedings include, but are not limited to— (A) matters concerning the administration of the estate; (B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or" }, { "docid": "16428931", "title": "", "text": "interpreting Stern claims and that approach was adopted here within the Seventh Circuit. At its essence, that reasoning is that matters under 28 U.S.C. § 157(b)(1) and matters under 28 U.S.C. § 157(c) are mutually exclusive, as the latter is expressly limited to “a proceeding that is not a core proceeding....” 28 U.S.C. § 157(c). Thus 28 U.S.C. § 157(c) does not act has a “catchall” to Stem claims, as such matters remain core proceedings and are excluded from the statutory jurisdiction granted bankruptcy courts to hear but not determine thereunder. Such matters fall within a “statutory gap” of statutory drafting, and thus may be neither heard nor determined by the bankruptcy courts. See Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 665 F.3d 906 (7th Cir.2011); see also Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 732 F.3d 313 (5th Cir.2013); Waldman v. Stone, 698 F.3d 910 (6th Cir.2012). That statutory gap in jurisdiction has come to be known locally as the Ortiz hole, and its existence has been a challenge for the bankruptcy courts in this jurisdiction. Compounding those issues, the breadth and depth of the Ortiz hole were each arguably increased by a later Seventh Circuit holding in Wellness Intern. Network, Ltd. v. Sharif, 727 F.3d 751 (7th Cir.2013), which held that, among other things, the Ortiz hole could not be remedied through concepts of forfeiture. Id. at 768. It is only in the Ortiz hole that the Movant’s argument that a Stem claim results in a lack of jurisdiction has merit. While, as discussed below, the Movant incorrectly conflates constitutional authority and jurisdiction, until recently, in the one limited aspect of the Ortiz hole, the Mov-ant’s theory had merit. Recently, however, the Supreme Court issued its opinion with respect to the Ninth Circuit’s Bellingham decision noted above. Executive Benefits Ins. Agency v. Arkison, — U.S. -, 134 S.Ct. 2165, 189 L.Ed.2d 83 (2014). In af&rming the Bellingham decision, Arkison expressly disclaims the statutory gap and confirms the ability of the bankruptcy courts to hear but not determine Stern claims under 28 U.S.C. § 157(c)." }, { "docid": "11609905", "title": "", "text": "Executive Benefits Insurance Agency v. Arkison, No. 12-1200.) So then: The creditor not having filed a proof of claim, and the parties’ consent being unavailing, can the Court issue a final judgment in this avoidance action? Since Stem, courts have been divided on whether bankruptcy courts can enter final decisions in preference actions under such conditions. See Tyson A Crist, Stern v. Marshall: Application of the Supreme Court’s Landmark Decision in the Lower Courts, 86 AM. Bankr. L.J. 627, 668-66 (2012) (collecting cases). The arguments for and against are sound. See, e.g., West v. Freedom Medical, Inc. (In re Apex Long Term Acute Care-Katy, L.P.), 465 B.R. 452, 455-68 (Bankr.S.D.Tex.2011) (providing extensive discussion of relevant jurisprudence and ultimately concluding that preference actions are determinable by bankruptcy courts). The issue appears finely balanced. It is not decisively resolvable without further guidance from the Fifth Circuit or the Supreme Court. Because there is no clear precedent altering the status quo in this respect, the Court will adhere to the pre-Stera practice of issuing its ruling on this core matter as a final judgment, as Congress permitted under 28 U.S.C. § 157(b)(2)(F). If the District Court concludes that this course of action was in error, and that this Court lacks constitutional authority, the “final judgment” can be construed as “proposed findings of fact and conclusions of law,” with a final judgment to be entered by the district court. See Order of Reference of Bankruptcy Cases and Proceedings at 1-2 (W.D. Tex. Oct. 4, 2013). II. BACKGROUND A. KLN’s Bankruptcy Filing, Plan, and Liquidating Trust On November 22, 2011, KLN Steel Products Company, LLC, along with several other affiliates (collectively, “KLN”), filed a petition for relief (the “Petition ”)under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code ”). Under the Debtors’ Third Amended Chapter 11 Plan of Reorganization (the “Plan”) [Dkt. No. 377], as confirmed by this Court [Dkt. No. 419], Michael Ciesla (“Plaintiff ”) was appointed as liquidating trustee of KLN. Under the Plan, Plaintiff is empowered to pursue certain of KLN’s claims, including avoidance claims. See Plan" }, { "docid": "17912977", "title": "", "text": "that Article III requires for federal judges, may only enter final judgment on matters of “public right,” even though the statute includes matters of “non-public right” within its examples of core proceedings. Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 2611-12, 180 L.Ed.2d 475 (2011). At least without the consent of the parties, disputes over non-public rights can only be treated by a bankruptcy judge through the issuance of proposed findings of fact and conclusions of law under 28 U.S.C. § 157(c)(1), with judgment entered by the district court after de novo review of the proposed findings and conclusions. Exec. Benefits Ins. Agency v. Arkison, — U.S. -, 134 S.Ct. 2165, 2173-74, 189 L.Ed.2d 83 (2014). This adversary proceeding deals primarily with efforts by the debtors’ estate to avoid fraudulent transfers. Fraudulent transfer actions are among the matters that the statute lists as core proceedings. 28 U.S.C. § 157(b)(2)(H). In Arkison, the Supreme Court considered a bankruptcy judge’s constitutional authority to enter final judgment on fraudulent transfer actions but did not decide the question. Rather, the Court noted that the district court had given de novo review to the bankruptcy judge’s entry of judgment, as it would have given to proposed findings and conclusions, and the Court held that this review cured any error in the entry of judgment by the bankruptcy judge. Id. at 2175. The Supreme Court has not yet decided whether, consistent with its reasoning in Stern v. Marshall, fraudulent transfer actions are generally outside a bankruptcy judge’s authority to enter judgment. Without a decision from the Supreme Court defining the breadth of Stem, the lower courts have disagreed about the extent to which Article III prohibits bankruptcy judges from entering -final judgments on various matters listed as core proceedings in § 157(b)(2). See Albert v. Site Management, Inc., 506 B.R. 453, 458 (D.Md.2014) (discussing conflicting decisions). However, the Ninth Circuit’s decision in Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency), 702 F.3d 553 (9th Cir.2012), aff'd on other grounds, Arkison, 134 S.Ct. at 2175, convincingly holds that bankruptcy judges generally may not" }, { "docid": "17549119", "title": "", "text": "a third party non-creditor of the estate, in order to recover assets allegedly belonging to the estate,’ that action ‘lies beyond the final adjudicative power of the Bankruptcy Court.’ ” Def. Motion to Amend, Notification of Lack of Consent, dated March 2, 2012 at 6, quoting Dev. Specialists, Inc. v. Orrick, Herrington & Sutcliffe, LLP, No. 11 Civ. 6337 CM, 2011 WL 6780600 at *2-3 (S.D.N.Y. Dec. 23, 2011). However, Defendants are hardly “third party non-creditors of the estate.” The Supreme Court stated in Stem that the counterclaim filed by the estate there was non-core because it was unrelated to the proof of claim that the creditor, Marshall, had filed. By contrast, where it is “not possible ... to rule on [the creditor’s] proof of claim without first resolving the fraudulent-transfer issue,” the estate’s claim against the creditor is a core matter. Stern v. Marshall, 131 S.Ct. at 2616; see also, Onkyo Europe Electronics GMBH v. Global Technovations Inc. (In re Global Technovations Inc.), 694 F.3d 705, 722 (6th Cir.2012), where the Court held it was “crystal clear that the bankruptcy court had constitutional jurisdiction under Stem to adjudicate whether the sale of GTI was a fraudulent transfer.” As the Ninth Circuit commented in Executive Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 562 n. 7 (9th Cir.2012), cert. granted sub nom. Executive Benefits Ins. Agency v. Arkison, — U.S.-, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013), “it was ‘crystal clear’ ” because of the creditor’s filing of a proof of claim. The Supreme Court in Stem did not question the continuing validity of its decisions in Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), and Langenkamp v. Culp, 498 U.S. 42, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990). It quoted its decision in Katchen as stating, “ ‘he who invokes the aid of the bankruptcy court by offering a proof of claim and demanding its allowance must abide the consequences of that procedure.’ ” Stern, 131 S.Ct. at 2616, quoting [382 U.S.] at 333-34, n. 9, 86 S.Ct." }, { "docid": "7137304", "title": "", "text": "The improper litigation strategy could equally be employed by the objector merely responding to summary judgment being sought by a debtor or trustee. Or, it could employed by a defendant who allows a matter to be tried by the Bankruptcy Court. Obviously if judgment is favorable to the objector he will then waive it, but will insist upon it if judgment is unfavorable. That strategy would be available even if the Stem objector is vociferously making the objection, as loudly as Bre’r Rabbit, even while trying the ease to the Bankruptcy Court. Perhaps to avoid such litigation strategy it will be necessary for courts to adopt a rule that the Stem objection is waived or forfeited unless the objector promptly moves for withdrawal of the reference and prosecutes that motion to conclusion in the District Court, as the Bellingham defendant apparently failed to do. But this Court need not make that determination on these facts, because here the Stem objection was waived or forfeited by Barclays Bank affirmatively asking for entry of final judgment by the Bankruptcy Court. For these reasons, counsel for Barclays Bank is requested to upload an appropriate form of final judgment in its favor. In the event any Article III court subsequently determines, in this case, that this Court lacked constitutional or statutory authority to enter such final judgment, then this Court deems this Opinion and Order and the final judgment to constitute proposed findings of fact and conclusions of law pursuant to, or by analogy to, 28 U.S.C. § 157(c)(1). . Unless otherwise indicated, all chapter and section references are to the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532; rule references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. . Stern v. Marshall, -U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). . In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir.2012), cert. granted sub nom. Exec. Benefits Ins. Agency v. Arkison,-U.S. -, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013). . See, e.g., Elec. City Merch. Co. v. Hailes (In re Hailes), 77 F.3d 873 (5th Cir.1996). . Estate of" }, { "docid": "17549123", "title": "", "text": "reorganization without first resolving this adversary proceeding, there was no question that “the process of adjudicating” Defendants’ proofs of claim required resolution of Plaintiffs’ fraudulent conveyance and other claims against the Defendants. In any event, there is no substance to Defendants’ argument that they only consented to bankruptcy court adjudication because they could not contemplate a class of claims that was statutorily core but beyond the bankruptcy judges’ constitutional power to finally resolve. At the time they filed their Answer in June, 2011, the Ninth Circuit had held that a counterclaim to a proof of claim might not be a “core” matter, even though it was defined as core in 28 U.S.C. § 157(b)(2)(C), and that a bankruptcy judge could not enter final judgment on the counterclaim. In re Marshall, 600 F.3d 1037, 1057 (9th Cir.2010). The Supreme Court had granted certiorari, — U.S.-, 131 S.Ct. 63, 177 L.Ed.2d 1152 (2010), and a decision was expected imminently, before the end of the term in June, 2011. If Marshall’s law yers could have preserved an Article III adjudication issue, Defendants could have preserved the issue, if in fact there ever was an issue. The issue was not new: in 1995 the Fifth Circuit held, based on the Supreme Court’s decision in Granfinanciera S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), that, absent the parties’ consent, bankruptcy courts lack authority to enter final judgment in fraudulent conveyance actions against third-parties who have not filed proofs of claim. In re Texas Gen. Petroleum Corp., 52 F.3d 1330, 1337 (5th Cir.1995). The Court is well aware of the recent Circuit Court cases that have been broadly construed to hold that consent may be insufficient to empower a bankruptcy judge to enter a final judgment against an entity that has not filed a claim against the estate. See Waldman v. Stone, 698 F.3d 910 (6th Cir.2012); Wellness Int'l. Network, Ltd. v. Sharif, 727 F.3d 751 (7th Cir.2013); Frazin v. Haynes & Boone L.L.P. (In re Frazin), 732 F.3d 313 (5th Cir.2013); In re BP RE, L.P., 735 F.3d 279 (5th" }, { "docid": "15276507", "title": "", "text": "Id. at 71, 102 S.Ct. 2858. Following Marathon, the Supreme Court issued several opinions seeking to further define the exception but no defined rule was ever established. See Executive Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 560 (9th Cir.2012) (citing and describing cases), cert granted Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), — U.S. -, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013). After Stem, a panel of the Ninth Circuit Court of Appeals concluded that Stem and Granfmanciera “together point ineluctably to the conclusion that fraudulent conveyance claims, because they do not fall within the public rights exception, cannot be adjudicated by non-Article III judges.” Bellingham, 702 F.3d at 561. As described previously, this adversary proceeding comprises a counterclaim that sought recovery that might offset and reduce LaSalle’s proof of claim. A Seventh Circuit panel has recently held that a bankruptcy court has broad authority to enter final judgment in a fraudulent conveyance claim by a creditor who has filed a proof of claim. Peterson, at 744-745. The opinion relied on Katchen v. Landy, 382 U.S. 323, 329-36, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), and Langenkamp v. Culp, 498 U.S. 42, 44-45, 111 S.Ct. 330, 112 L.Ed.2d 343, (1990) for the proposition “that Article III authorizes bankruptcy judges to handle avoidance actions against claimants.” Id. The Opinion further cited to Granfmanciera to support its reasoning that the key distinction is whether a proof of claim has been filed by the defendant claimant. Peterson reasoned that neither Stem nor Wellness held to the contrary. Peterson at 744-45. Indeed, both Stem and Wellness involved claims that went beyond the issue that would be passed on when ruling on the creditor’s proof of claim. In Stem, the counter-plaintiffs tor-tious interference claim raised several additional issues including whether tortious interference with an inter vivos gift was recognized under Texas state law. Stern, 131 S.Ct. at 2617. In Wellness, in addition to the issues to be decided under counts that would have been constitutionally permissible, there were several additional issues, including whether" }, { "docid": "15276506", "title": "", "text": "64-67, 102 S.Ct. 2858. The Marathon Opinion explained, “[o]ur precedents clearly establish that only controversies in the former category may be removed from Art. Ill courts and delegated to legislative courts or administrative agencies for their determination. Private-rights disputes, on the other hand, lie at the core of the historically recognized judicial power.” Id. at 70, 102 S.Ct. 2858 (citations and footnote omitted). Although the Marathon plurality could not agree on the precise scope of the public rights exception those Justices agreed that the state-law breach of contract and warranty claims did not fit within the exception. See id. at 69, 102 S.Ct. 2858. Nevertheless, the Marathon Opinion suggested that some bankruptcy proceedings might fit within the public rights exception, stating: “the restructuring of debtor-creditor relations, which is at the core of the federal bankruptcy power, must be distinguished from the adjudication of state-created private rights, such as the right to recover contract damages that is at issue in this case. The former may well be a ‘public right,’ but the latter obviously is not.” Id. at 71, 102 S.Ct. 2858. Following Marathon, the Supreme Court issued several opinions seeking to further define the exception but no defined rule was ever established. See Executive Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 560 (9th Cir.2012) (citing and describing cases), cert granted Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), — U.S. -, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013). After Stem, a panel of the Ninth Circuit Court of Appeals concluded that Stem and Granfmanciera “together point ineluctably to the conclusion that fraudulent conveyance claims, because they do not fall within the public rights exception, cannot be adjudicated by non-Article III judges.” Bellingham, 702 F.3d at 561. As described previously, this adversary proceeding comprises a counterclaim that sought recovery that might offset and reduce LaSalle’s proof of claim. A Seventh Circuit panel has recently held that a bankruptcy court has broad authority to enter final judgment in a fraudulent conveyance claim by a creditor who has filed a proof of" }, { "docid": "11609903", "title": "", "text": "[Dkt. No. 38], Plaintiffs Post-Trial Brief [Dkt. No. 37], the presentations made at a trial on this matter held on October 25, 2013 (the “Trial ”), all other evidence in the record, and the relevant case law. I. JURISDICTION AND CONSTITUTIONAL AUTHORITY The Court has jurisdiction over this avoidance action pursuant to 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(F). But while jurisdiction is certain, the Court’s authority under the Constitution to determine the dispute is less so. This uncertainty arises in the wake of Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), in which the Supreme Court ruled that at least some matters within the statutory jurisdiction of non-Article III bankruptcy courts nonetheless cannot be constitutionally decided by those courts. If a creditor has filed a proof of claim in the bankruptcy case, courts are generally confident that an avoidance action (such as this one) targeting that creditor is within the Court’s constitutional power, because the “process of allowing or disallowing claims” will usually require deciding the avoidance issue. Stern, 131 S.Ct. at 2616; see Burns v. Dennis (In re Se. Materials, Inc.), 467 B.R. 337, 348 — (Bankr.M.D.N.C.2012) (discussing cases). But Harney has not filed a proof of claim, so that avenue to a final judgment appears foreclosed. Some courts allow bankruptcy courts to enter final judgments upon consent of the parties. See Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency), 702 F.3d 553, 566-70 (9th Cir.2012), cert. granted sub nom. Exec. Benefits Ins. Agency v. Arkison, — U.S. --, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013) (No. 12-1200). Here, the parties have consented. But the Fifth Circuit has ruled squarely that such consent is ineffective to empower this Court to enter a final judgment under the Constitution. See Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 732 F.3d 313, 320 n. 3 (5th Cir.2013); BP RE L.P. v. RML Waxahachie Dodge, L.L.C. (In re BP RE, L.P.), 735 F.3d 279, 286-91 (5th Cir.2013). (This issue is currently before the Supreme Court, as" }, { "docid": "17549120", "title": "", "text": "was “crystal clear that the bankruptcy court had constitutional jurisdiction under Stem to adjudicate whether the sale of GTI was a fraudulent transfer.” As the Ninth Circuit commented in Executive Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 562 n. 7 (9th Cir.2012), cert. granted sub nom. Executive Benefits Ins. Agency v. Arkison, — U.S.-, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013), “it was ‘crystal clear’ ” because of the creditor’s filing of a proof of claim. The Supreme Court in Stem did not question the continuing validity of its decisions in Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), and Langenkamp v. Culp, 498 U.S. 42, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990). It quoted its decision in Katchen as stating, “ ‘he who invokes the aid of the bankruptcy court by offering a proof of claim and demanding its allowance must abide the consequences of that procedure.’ ” Stern, 131 S.Ct. at 2616, quoting [382 U.S.] at 333-34, n. 9, 86 S.Ct. 467, and continued, “In Katchen one of those consequences was resolution of the preference issue as part of the process of allowing or disallowing claims, and accordingly there was no basis for the creditor to insist that the issue be resolved by an Article III court.” Id. The Stem majority quoted the Court’s opinion in Langenkamp as explaining that “a preferential transfer claim can be heard in bankruptcy when the allegedly favored creditor has filed a claim, because then ‘the ensuing preference action by the trustee become[s] integral to the restructuring of the debtor-creditor relationship.’ ” Stern, 131 S.Ct. at 2617, quoting Langenkamp, 498 U.S. at 44, 111 S.Ct. 330. In the instant case Defendants filed proofs of claim against the Debtors for damages they now value in the billions of dollars. Among other things, they sought damages for the Debtors’ failure to abide by the terms of the spinoff generally, and the Master Separation Agreement in particular, such as failure to assume the defense of environmental litigation allocated to Tronox. When the Debtors failed" }, { "docid": "12783638", "title": "", "text": "the defendants’ motions to dismiss the Complaint and the Crossclaim. II. Jurisdiction and Constitutional Authority The Court has jurisdiction to hear and determine this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334 and the general order of reference entered in this district. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(H). Because none of the defendants filed a proof of claim, the Court might have lacked the authority under Article III of the Constitution to enter final judgment on the trustees’ fraudulent transfer claims absent the consent of the parties. See, e.g., Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 562-63 (9th Cir.2012) (holding that bankruptcy courts lack the constitutional authority after Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), to enter final judgment on fraudulent transfer claims against defendants that have not filed proofs of claim), affd, — U.S. -, 134 S.Ct. 2165, 189 L.Ed.2d 83 (2014). Cf. Onkyo Europe Elees. GMBH v. Global Technovations Inc. (In re Global Technovations Inc.), 694 F.3d 705, 722 (6th Cir.2012) (“In our case, Onkyo filed a proof of claim against GTI’s bankruptcy estate.... It is crystal clear that the bankruptcy court had constitutional jurisdiction under Stem to adjudicate whether the sale of GTI was a fraudulent transfer, because it was not possible ... to rule on [Onkyo’s] proof of claim without first resolving the fraudulent-transfer issue.”) (internal quotation marks omitted). But “Article III is not violated when the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge.” Wellness Int’l Network, Ltd. v. Sharif, — U.S. -, 135 S.Ct. 1932, 1939, 191 L.Ed.2d 911 (2015). Here, the parties have consented to the Court’s entry of final judgment. The Court accordingly has constitutional authority to enter final judgment in this adversary proceeding. III. Background The reason two Chapter 7 trustees are involved in this adversary proceeding is that it is associated with two separate bankruptcy cases. The first, No. 11-61613 (the “Bolon Case”), is the Chapter 7 case that Thomas M. Bolon, Jr. (“Bolon”) commenced when he" }, { "docid": "14225028", "title": "", "text": "John has requested a jury trial and has not consented to one before the bankruptcy court. John ar gues that, under the Supreme Courts de-r cisions in Stern v. Marshall, 564 U.S. 462, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), and Executive Benefits Insurance Agency v. Arkison, — U.S. -, 134 S.Ct. 2165, 189 L.Ed.2d 83 (2014), the fraudulent conveyance claims against him must now be treated as non-core, which means that the bankruptcy court necessarily lacked discretion to deny his motion to compel arbitration. We disagree. As an initial matter, John did not file his answer until after the bankruptcy court had denied his motion to compel. As a result, the bankruptcy court has never had an opportunity to determine in the first instance whether the fraudulent conveyance claims remain a core proceeding in light of the answer. See Exec. Benefits Ins. Agency, 134 S.Ct. at 2171 (“It is the bankruptcy court’s responsibility to determine whether each claim before it is core or non-core.”). In this case, though, that doesn’t matter because John’s answer did not take the Trustee’s fraudulent conveyance causes of action outside the analytical paradigm that this court established in Thorpe Insulation. The Trustee’s fraudulent conveyance claims against - John remain statutorily core, see Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553, 565 (9th Cir.2012), aff'd, Exec. Benefits Ins. Agency, — U.S. -, 134 S.Ct. 2165, 189 L.Ed.2d 83, meaning that Congress has identified that type of claim as one that historically fell within the scope of the bankruptcy court’s power. See Exec. Benefits Ins. Agency, 134 S.Ct. at 2171 n. 7. Stem and its progeny simply recognize that sometimes the bankruptcy court’s statutory authority to decide a core matter must give way when that interest conflicts with a non-creditor’s constitutional right to entry of a final judgment by an- Article III adjudicator. See id. at 2172 (“Stem made clear that, some claims labeled by Congress as ‘core’ may not be- adjudicated by a bankruptcy court in .the ■ -manner - designated by § 157(b).”); In re Bellingham Ins." }, { "docid": "2214151", "title": "", "text": "certain matters has a long history extending at least to Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), where the United States Supreme Court held that jurisdictional aspects of the Bankruptcy Reform Act of 1978 were unconstitutional. In response, Congress enacted new legislation, the Bankruptcy Amendments and Federal Judgeship Act of 1984, in an attempt to cure the constitutional defects in the Bankruptcy Reform Act. However, in 2011, the authority of the bankruptcy courts to enter a final judgment on certain matters was again challenged. See Stern v. Marshall, — U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). In Stem, the Supreme Court held that the bankruptcy court lacked authority under Article III of the Constitution to enter a final judgment as to a state common law counterclaim. Id. at 2611. Stem gave rise to a new term in bankruptcy parlance — a “Stem claim,” which is generally defined as a “claim designated for final adjudication in the bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a constitutional matter.” Exec. Benefits Ins., Agency v. Arkison, — U.S. -, 134 S.Ct. 2165, 2170, 189 L.Ed.2d 83 (2014). Soon thereafter, bankruptcy courts and appellate courts were confronted with numerous challenges to the ability of the bankruptcy courts to enter a final judgment or order on Stem claims. One of these challenges was whether parties could consent to the entry of a final judgment or order by a bankruptcy court with respect to Stem claims. The Sixth Circuit held that they could not. See Waldman v. Stone, 698 F.3d 910, 918 (6th Cir.2012). However, a circuit split arose when the Ninth Circuit held that bankruptcy courts could enter final judgments on Stem claims upon the consent of the parties. Exec. Benefits Ins. Agency v. Arkison, 702 F.3d 553, 567 (9th Cir.2012). In 2014, the Supreme Court revisited Stem when it considered whether bankruptcy courts have the authority to even enter proposed findings of fact and conclusions of law with respect to Stem claims. Arkison, 134" }, { "docid": "16428930", "title": "", "text": "objected.” Id. Given that 28 U.S.C. § 157(c) permits bankruptcy courts to hear but not determine a broad range of matters based only on whether they relate to the bankruptcy case, it follows that any matter related to a case under title 11, whether or not such matter is a core proceeding, may be so heard even if the authority to hear and determine such a matter under 28 U.S.C. § 157(b)(1) is constitutionally infirm. So held a number of courts when faced with this same question. Executive Benefits Insurance Agency v. Arkison (In re Bellingham Ins. Agency, Inc.), 702 F.3d 553 (9th Cir.2012); see also Rothrock v. PNC Bank, N.A. (In re Parco Merged Media Corp.), 489 B.R. 323, 325 (D.Me.2013) (stating that “[m]ost district and bankruptcy courts that have addressed the issue have reached the same conclusion.” and providing cites aggregating cases). Under such logic, a Stem claim falls within the bankruptcy court’s státutory jurisdiction to hear but not determine a matter under 28 U.S.C. § 157(c). There was, however, another approach to interpreting Stern claims and that approach was adopted here within the Seventh Circuit. At its essence, that reasoning is that matters under 28 U.S.C. § 157(b)(1) and matters under 28 U.S.C. § 157(c) are mutually exclusive, as the latter is expressly limited to “a proceeding that is not a core proceeding....” 28 U.S.C. § 157(c). Thus 28 U.S.C. § 157(c) does not act has a “catchall” to Stem claims, as such matters remain core proceedings and are excluded from the statutory jurisdiction granted bankruptcy courts to hear but not determine thereunder. Such matters fall within a “statutory gap” of statutory drafting, and thus may be neither heard nor determined by the bankruptcy courts. See Ortiz v. Aurora Health Care, Inc. (In re Ortiz), 665 F.3d 906 (7th Cir.2011); see also Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 732 F.3d 313 (5th Cir.2013); Waldman v. Stone, 698 F.3d 910 (6th Cir.2012). That statutory gap in jurisdiction has come to be known locally as the Ortiz hole, and its existence has been a challenge for" }, { "docid": "17549124", "title": "", "text": "III adjudication issue, Defendants could have preserved the issue, if in fact there ever was an issue. The issue was not new: in 1995 the Fifth Circuit held, based on the Supreme Court’s decision in Granfinanciera S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), that, absent the parties’ consent, bankruptcy courts lack authority to enter final judgment in fraudulent conveyance actions against third-parties who have not filed proofs of claim. In re Texas Gen. Petroleum Corp., 52 F.3d 1330, 1337 (5th Cir.1995). The Court is well aware of the recent Circuit Court cases that have been broadly construed to hold that consent may be insufficient to empower a bankruptcy judge to enter a final judgment against an entity that has not filed a claim against the estate. See Waldman v. Stone, 698 F.3d 910 (6th Cir.2012); Wellness Int'l. Network, Ltd. v. Sharif, 727 F.3d 751 (7th Cir.2013); Frazin v. Haynes & Boone L.L.P. (In re Frazin), 732 F.3d 313 (5th Cir.2013); In re BP RE, L.P., 735 F.3d 279 (5th Cir.2013). The Supreme Court has before it on certiorari the Ninth Circuit’s decision in In re Bellingham Ins. Agency, Inc., which held to the contrary, and the Supreme Court’s ruling will presumably clarify this issue. However, it is worth noting that none of the above cases involved defendants who had filed proofs of claim, and all involved one form or another of implied consent, based on the defendant’s participation in litigation, default, or other form of action or inaction. In any event, the leading authority on implied consent in this Circuit remains In re Men’s Sportswear, Inc., 834 F.2d 1134, 1138 (2d Cir.1987), where the Court held that the defendant impliedly consented to the bankruptcy court’s adjudication of allegedly non-core claims. The Supreme Court has also held that parties may consent to adjudication of non-core issues by the bankruptcy court, including in Stem itself, 131 S.Ct. at 2606, 2607, where the Court acknowledged that “parties may consent to entry of [a] final judgment by [a] bankruptcy judge in [a] non-core case.” (citing 28 U.S.C. §" }, { "docid": "11609904", "title": "", "text": "usually require deciding the avoidance issue. Stern, 131 S.Ct. at 2616; see Burns v. Dennis (In re Se. Materials, Inc.), 467 B.R. 337, 348 — (Bankr.M.D.N.C.2012) (discussing cases). But Harney has not filed a proof of claim, so that avenue to a final judgment appears foreclosed. Some courts allow bankruptcy courts to enter final judgments upon consent of the parties. See Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency), 702 F.3d 553, 566-70 (9th Cir.2012), cert. granted sub nom. Exec. Benefits Ins. Agency v. Arkison, — U.S. --, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013) (No. 12-1200). Here, the parties have consented. But the Fifth Circuit has ruled squarely that such consent is ineffective to empower this Court to enter a final judgment under the Constitution. See Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 732 F.3d 313, 320 n. 3 (5th Cir.2013); BP RE L.P. v. RML Waxahachie Dodge, L.L.C. (In re BP RE, L.P.), 735 F.3d 279, 286-91 (5th Cir.2013). (This issue is currently before the Supreme Court, as Executive Benefits Insurance Agency v. Arkison, No. 12-1200.) So then: The creditor not having filed a proof of claim, and the parties’ consent being unavailing, can the Court issue a final judgment in this avoidance action? Since Stem, courts have been divided on whether bankruptcy courts can enter final decisions in preference actions under such conditions. See Tyson A Crist, Stern v. Marshall: Application of the Supreme Court’s Landmark Decision in the Lower Courts, 86 AM. Bankr. L.J. 627, 668-66 (2012) (collecting cases). The arguments for and against are sound. See, e.g., West v. Freedom Medical, Inc. (In re Apex Long Term Acute Care-Katy, L.P.), 465 B.R. 452, 455-68 (Bankr.S.D.Tex.2011) (providing extensive discussion of relevant jurisprudence and ultimately concluding that preference actions are determinable by bankruptcy courts). The issue appears finely balanced. It is not decisively resolvable without further guidance from the Fifth Circuit or the Supreme Court. Because there is no clear precedent altering the status quo in this respect, the Court will adhere to the pre-Stera practice of issuing its ruling on this" }, { "docid": "7137305", "title": "", "text": "the Bankruptcy Court. For these reasons, counsel for Barclays Bank is requested to upload an appropriate form of final judgment in its favor. In the event any Article III court subsequently determines, in this case, that this Court lacked constitutional or statutory authority to enter such final judgment, then this Court deems this Opinion and Order and the final judgment to constitute proposed findings of fact and conclusions of law pursuant to, or by analogy to, 28 U.S.C. § 157(c)(1). . Unless otherwise indicated, all chapter and section references are to the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532; rule references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. . Stern v. Marshall, -U.S. -, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). . In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir.2012), cert. granted sub nom. Exec. Benefits Ins. Agency v. Arkison,-U.S. -, 133 S.Ct. 2880, 186 L.Ed.2d 908 (2013). . See, e.g., Elec. City Merch. Co. v. Hailes (In re Hailes), 77 F.3d 873 (5th Cir.1996). . Estate of Gianna Blue v. Cnty. of Los Angeles, 120 F.3d 982 (9th Cir.1997) (Rule 11 applies when a plaintiff should have known of a defense such as statute of limitations that bars the claim); Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 180 P.3d 977, 983 (Ct.App.2008). . Supra note 3. . See, e.g., Hasse v. Rainsdon (In re Pringle), 495 B.R. 447, 458 (9th Cir. BAP 2013) (\"Thus, under Bellingham, sandbagging can supply consent through the knowing failure to object while purposefully proceeding through the bankruptcy court system.”); Ogier v. Johnson, 2013 WL 6843476 (N.D.Ga. Dec. 27, 2013); Corliss Moore & Assocs. v. Credit Control Servs., Inc., 497 B.R. 219 (E.D.Va.2013); Ctr. Operating Co., LP v. Base Holdings, LLC (In re Base Holdings, LLC), 2013 WL 357607 (N.D.Tex. Jan. 30, 2013). . 702 F.3d at 570." }, { "docid": "17912978", "title": "", "text": "Rather, the Court noted that the district court had given de novo review to the bankruptcy judge’s entry of judgment, as it would have given to proposed findings and conclusions, and the Court held that this review cured any error in the entry of judgment by the bankruptcy judge. Id. at 2175. The Supreme Court has not yet decided whether, consistent with its reasoning in Stern v. Marshall, fraudulent transfer actions are generally outside a bankruptcy judge’s authority to enter judgment. Without a decision from the Supreme Court defining the breadth of Stem, the lower courts have disagreed about the extent to which Article III prohibits bankruptcy judges from entering -final judgments on various matters listed as core proceedings in § 157(b)(2). See Albert v. Site Management, Inc., 506 B.R. 453, 458 (D.Md.2014) (discussing conflicting decisions). However, the Ninth Circuit’s decision in Exec. Benefits Ins. Agency v. Arkison (In re Bellingham Ins. Agency), 702 F.3d 553 (9th Cir.2012), aff'd on other grounds, Arkison, 134 S.Ct. at 2175, convincingly holds that bankruptcy judges generally may not enter final judgment in fraudulent transfer actions. The basis for this conclusion is that (1) in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 56, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Supreme Court held that fraudulent transfer actions were non-public actions giving rise to a right to jury trial, and (2) in Stern, 131 S.Ct. at 2614, the Court equated the right to Article III adjudication with the jury trial right, specifically citing Granfmanci-era. The leading contrary decision, In re Refco, Inc., 461 B.R. 181, 186-87 (Bankr. S.D.N.Y.2011), suggests that the public right analysis of Stem is only an alternative holding by a plurality of the Court and that the concurring opinion of Justice Sca-lia suggests a different analysis for fraudulent transfers — first, that a bankruptcy judge may be constitutionally authorized to issue a final judgment on matters for which such judgment entry is “a firmly established historical practice,” Stern, 131 S.Ct. at 2621 (Scalia, J., concurring), and second, that historically, fraudulent transfer actions have been subject to final judgment by bankruptcy judges." } ]

[ { "docid": "16332682", "title": "", "text": "(1985). “Ever since Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887 it has been the rule that after an indictment has been returned its charges, may not be broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252 (1960). Any such amendment effected by the court’s instructions would constitute plain error and be reversible per se. At the end of trial the court instructed the jury that: “A check is falsely made or forged for the purpose ... of this law and this case if: one, the maker of the check was not authorized to sign on the account of which check was drawn; or two, the check was drawn on a closed account; or three, the check was made payable to a fictitious payee and proof of any one or more of these is sufficient.” R.Vol. IV at 405. Thus, the jury instructions allowed the jury to find the check falsely made and forged if, (1) the maker of the check was not authorized to sign on the account from which the check was drawn; (2) the check was drawn on a closed account; or (3) the check was made payable to a fictitious payee. Phillips contends that this instruction constitutes a constructive amendment of the indictment on the premise that the indictment referred to a forged signature of the maker but not to a closed account or fictitious payee. We disagree with that premise. In interpreting an indictment, we are governed by practical rather than technical considerations. United States v. Martin, 783 F.2d 1449, 1452 (9th Cir.1986) (“Charging documents are tested by whether they apprise the defendant of what evidence he must be prepared to meet____ An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied.”) (citations omitted); see also United States v. Maggitt, 784 F.2d 590, 598 (5th Cir.1986) (“An indictment is to be read in light of its purpose, which is to" } ]

[ { "docid": "17804877", "title": "", "text": "of the United States. As this court has explained, “an amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Keller, 916 F.2d 628, 634 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991); see United States v. Miller, 471 U.S. 130, 138, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985). Convictions based on a modification of an essential element not charged by the grand jury present reversible error. United States v. Artrip, 942 F.2d 1568, 1570 (11th Cir.1991). Such modifications may occur either by the actions of the court or actions of the prosecutor. United States v. Salinas, 654 F.2d 319, 324 (5th Cir. Unit A Aug. 1981). A court’s jury instruction that constructively amends an indictment constitutes reversible error per se because the instruction violates a defendant’s Fifth Amendment right to be tried only on charges presented by a grand jury and creates the possibility that the defendant may have been convicted on grounds that the indictment did not allege. United States v. Weissman, 899 F.2d 1111, 1114 (11th Cir.1990). During closing arguments, the prosecutor told the jury: Under the law as the Judge is going to tell you, not only it [sic] has to be a U.S. vessel by registration, but if you are a resident alien or a U.S. citizen, that invokes the jurisdiction under this statute. Also, while summing up instructions on Count One, the court instructed the jury that “to prove a violation of [section 1903(a) ], the Government must prove ... only that the defendants were on board a vessel subject to the jurisdiction of the United States or were citizens of the United States, and that while on board the vessel the defendants knowingly and intentionally possessed with intent to distribute cocaine.” The appellants contend the prosecutor and court constructively amended the indictment by allowing the jury to convict them based on the appellants’ nationality or on the GHOSTs being “subject to the jurisdiction of" }, { "docid": "22998584", "title": "", "text": "U.S. 1207, 103 S.Ct. 1198, 75 L.Ed.2d 441 (1983); Beeler, 587 F.2d at 342; cf. United States v. Ylda, 653 F.2d 912, 914-15 (5th Cir.1981) (per curiam) (trial court’s jury instruction altered elements of offense but evidence was consistent with indictment; held; no possibility that defendant was convicted of crime other than that set out in indictment and instruction was thus harmless). Although the distinction between a variance and a constructive amendment is at best “shadowy,” 3 C. Wright, Federal Practice and Procedure § 516, at 26 (2d ed. 1982), it has been considered significant. In dicta we have repeatedly stated that “amendments are deemed prejudicial per se.” United States v. Burkhart, 682 F.2d 589, 591 (6th Cir.), cert. denied, 459 U.S. 915, 103 S.Ct. 228, 74 L.Ed.2d 181 (1982); see also Beeler, 587 F.2d at 342 (where although prejudice was clearly present, we noted the per se rule). Variances, on the other hand, will not result in reversal unless “substantial rights” of a defendant have been affected. Fed.R.Crim.P. 52; United States v. Bowers, 739 F.2d 1050, 1053 (6th Cir.), cert. denied, — U.S.—, 105 S.Ct. 195, 83 L.Ed.2d 128 (1984); Beeler, 587 F.2d at 342. Substantial rights, in turn, are affected only when a defendant shows “prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions.” United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 1816 n. 5, 85 L.Ed.2d 99 (1985). We have held that a variance crosses the constructive amendment line only when the variance “create[s] ‘a substantial likelihood’ that a defendant may have been ‘convicted of an offense other than that charged by the grand jury.’ ” Beeler, 587 F.2d at 342; see also United States v. Gray, 790 F.2d 1290, 1297 (6th Cir.1986) (per curiam). No such danger is present in the instant case, and, thus, the problem, if any, is one of a variance. Since we are dealing with a variance, and not an amendment, the only remaining question is whether prejudice is present. “[Bjecause variances between indictments" }, { "docid": "23677981", "title": "", "text": "is reversible per se. Hunter, 916 F.2d at 599; Apodaca, 843 F.2d at 428. A variance rises to the level of a constructive amendment “ ‘if the evidence presented at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the indictment.’ ” Hunter v. State of New Mexico, 916 F.2d 595, 599 (10th Cir.1990) (quoting United States v. Apodaca, 843 F.2d 421, 428 (10th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988)). When an amendment occurs, the jury “convict[s] the defendant upon a factual basis that effectively modifies an essential element of the offense charged.” United States v. Chandler, 858 F.2d 254, 257 (5th Cir.1988). Kirby contends the district court effectively amended the indictment by instructing the jury that his participation in the cocaine conspiracy alone was sufficient to support a conviction. We recently addressed this issue in United States v. Mobile Materials, 881 F.2d 866, 874 (10th Cir.1989), where we pointed out that in United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), “the Supreme Court indicated that the fifth amendment grand jury guarantee is not violated if a defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” The Court explained that “[a]s long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” Id. at 136, 105 S.Ct. at 1815. In this case, the conspiracy to distribute cocaine was fully included within the first superseding indictment. Thus, no constructive amendment occurred. A variance that does not rise to the level of a constructive amendment does not require reversal per se, but instead requires that we examine the record as a whole to determine whether the variance" }, { "docid": "23287522", "title": "", "text": "facts that would have damaged the informant’s reliability had they done more work. However, this is insufficient to show that the police misled the judge or that the judge did not have a substantial basis to find probable cause based on the affidavit. II.Constructive Amendment. of the Indictment Mills contends that the government constructively amended the indictment against him by introducing evidence of his possession of two of Hall’s guns on June 24, 1992. He claims that this problem arose because the indictment and jury instructions charged him with possession “on or about” June 30, 1992. Thus, he argues, the jury could have convicted him of the June 24 possession as well as the June 30 possession, broadening the intended scope of the indictment. A constructive amendment that broadens an indictment is reversible error per Se, because only the grand jury can amend an indictment. United States v. Wright, 932 F.2d 868, 874 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 448 and cert. denied, - U.S. -, 112 S.Ct. 450, 116 L.Ed.2d 467 (1991). \"A constructive amendment of an indictment 'occurs when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.'\" United States v. Hornung, 848 F.2d 1040, 1046 (10th Cir.1988) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986)), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989). Even if we assume that the June 24 possession was a different offense than the \"on or about June 30\" possession charged in the indictment, we conclude that there is no substantial likelihood that the jury convicted Mills for possessing two weapons on June 24. Based on our review of the record as a whole, we are convinced that the evidence limited the charged crime to the guns actually found on June 30. Both the questions and arguments of defense counsel and" }, { "docid": "16102022", "title": "", "text": "theories as to the interstate commerce element of the case, but one of those theories had never been passed on by the grand jury. Noting that “it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself”, id. at 216-16, 80 S.Ct. at 272, the Court reversed Stirone’s conviction because the indictment had been constructively amended at trial. Stirone, then, stands for the proposition that an indictment is constructively amended where the proof adduced at trial “broadens the basis of conviction beyond that charged in the indictment.” United States v. Patino, 962 F.2d 263, 265 (2d Cir.1992) (citing United States v. Miller, 471 U.S. 130, 144-45, 105 S.Ct. 1811, 1819-20, 85 L.Ed.2d 99 (1985)). However, a court may narrow an indictment at trial without violating the grand jury clause where “what was removed from the case was in no way essential to the offense on which the jury convicted.” Miller, 471 U.S. at 145, 105 S.Ct. at 1820. Since the constructive amendment, or broadening, of the charging instrument at trial “destroy[s] the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury”, Stirone, 361 U.S. at 217, 80 S.Ct. at 273, it “is a per se violation of the grand jury clause of the Fifth Amendment” where such amendment affects “an essential element of the offense”. Patino, 962 F.2d at 265-66 (citing United States v. Zingaro, 858 F.2d 94, 98 (2d Cir.1988)) Without question, the object of a conspiracy constitutes an essential element of the conspiracy offense. The statute itself provides in relevant part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more such persons do any act to effect the object of the conspiracy * * *. 18 U.S.C. § 371. Irene argues that the indictment’s plain language clearly demonstrates that Meir’s receipt of a green card was the" }, { "docid": "4771821", "title": "", "text": "(7th Cir.1985), cert, denied, 474 U.S. 1076, 106 S.Ct. 838, 88 L.Ed.2d 809 (1986). The compelling weight of authority is in favor of holding that the residual clause § 1503 was not amended in 1982 and remains broad enough to cover proscribed acts against a witness. The defendants alternatively argue that count thirty-two fails to allege the essential elements to a charge of obstruction of justice under § 1503. Specifically, the indictment does not allege that the defendants had knowledge or notice of the pending judicial proceeding, does not allege to whom Garcia was to “falsely state and testify,” and does not allege that the defendants knew Garcia was a witness. The government responds with a single sentence, “[mjoreover, the indictment informs the defendants that the government intends to prove that the obstruction was in ‘a federal grand jury investigation in the District of Kansas’ and that the defendants have knowledge of that fact in connection with the action undertaken by the defendants.” As previously stated, an indictment is sufficient when it contains the elements of the offense charged, apprises the defendant of what charges he must defend against, and affords protection from being placed in jeopardy twice for the same offense. United States v. Walker 947 F.2d 1439, 1441 (10th Cir.1991). The sufficiency of an indictment is judged “by practical rather than technical considerations.” Dunn, 841 F.2d at 1029. “ ‘An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied’ ” by the specific allegations. United States v. Phillips, 869 F.2d 1361, 1364 (10th Cir.1988) (quoting United States v. Martin, 783 F.2d 1449, 1452 (9th Cir.1986)), cert, denied, 490 U.S. 1069, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989). An indictment is generally sufficient when it “set[s] forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.” Ham-ling v. United States 418 U.S. 87, 117, 94 S.Ct. 2887," }, { "docid": "2117599", "title": "", "text": "United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). “Plain error is highly prejudicial error affecting substantial rights.” United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989) (internal quotations and citations omitted). We may reverse for improper instructions only when necessary to prevent a miscarriage of justice or to preserve the integrity and fundamental fairness of the judicial process. See United States v. Young, 470 U.S. 1, 16-17 & n. 14, 105 S.Ct. 1038, 1046-47 & n. 14, 84 L.Ed.2d 1 (1984); Bustillo, 789 F.2d at 1367. Under the grand jury clause of the fifth amendment, a defendant has a right to be tried only on the grand jury’s indictment. United States v. Miller, 471 U.S. 130, 134, 105 S.Ct. 1811, 1814, 85 L.Ed.2d 99 (1985). This requirement serves the notice-related functions of protecting against unfair surprise, enabling the defendant to prepare for trial and permitting the defendant to plead the indictment as a bar to later prosecutions. See id. at 134-35, 105 S.Ct. at 1814-15. Requiring the proof to remain true to the indictment enables the grand jury to serve its function of protecting the citizenry. Id. at 139, 105 S.Ct. at 1816-17; see Stirone v. United States, 361 U.S. 212, 218 & n. 3, 80 S.Ct. 270, 273 & n. 3, 4 L.Ed.2d 252 (1960). In Stirone, the Court indicated that sometimes a divergence of trial proof from the indictment will be an “insignificant variance” that constitutes harmless error. At other times, it will amount to an “amendment” that broadens the indictment. See id. at 215-17, 80 S.Ct. at 272-73. We distinguish variances from amendments by determining whether the charging terms of the indictment have been altered, either formally or in effect. See United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir.1984) (an amendment exists where the trial involves a distinctly different set of facts than was outlined in the indictment). An amendment has a different impact than does a variance. An amendment always requires reversal, because it deprives a defendant of his right to be tried on the grand jury’s charge. Stirone, 361" }, { "docid": "4771822", "title": "", "text": "of the offense charged, apprises the defendant of what charges he must defend against, and affords protection from being placed in jeopardy twice for the same offense. United States v. Walker 947 F.2d 1439, 1441 (10th Cir.1991). The sufficiency of an indictment is judged “by practical rather than technical considerations.” Dunn, 841 F.2d at 1029. “ ‘An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied’ ” by the specific allegations. United States v. Phillips, 869 F.2d 1361, 1364 (10th Cir.1988) (quoting United States v. Martin, 783 F.2d 1449, 1452 (9th Cir.1986)), cert, denied, 490 U.S. 1069, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989). An indictment is generally sufficient when it “set[s] forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.” Ham-ling v. United States 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)). “[T]he failure of an indictment to allege all essential elements of an offense is a jurisdictional defect requiring dismissal.” United States v. Brown, 995 F.2d 1493, 1503 (10th Cir.), cert, denied, - U.S. -, 114 S.Ct. 353, 126 L.Ed.2d 317 (1993). The requirement to charge all elements “ ‘derives from the Fifth Amendment, which requires that the grand jury have considered and found all elements to be present.’ ” Id. (quoting United States v. Hooker, 841 F.2d 1225, 1230 (4th Cir.1988)). The elements to a residual clause violation of § 1503 are: “ ‘(1) there must be a pending judicial proceeding; (2) the defendant must have knowledge or notice of the pending proceeding; and (3) the defendant must have acted corruptly with specific intent to obstruct or impede the proceeding in its due administration of justice.’” United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993) (quoting United States v. Williams, 874 F.2d 968, 977 (5th Cir.1989))." }, { "docid": "22295724", "title": "", "text": "constitutes an impermissible amendment. “[A]n amendment occurs when ‘the offense proved at trial was not fully contained in the indictment, for trial evidence had “amended” the indictment by broadening the possible bases for conviction from that which appeared in the indictment.’ ” United States v. Kuna, 760 F.2d 813, 817-18 (7th Cir.1985) (quoting United States v. Miller, 471 U.S. 130, 138, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985), with reference to Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)). See also United States v. Zíngaro, 858 F.2d 94, 103 (2d Cir.1988). It is generally recognized that a trial court cannot amend the indictment by eliminating or changing an essential element of the crime. This court has found a constructive amendment where a “complex set of facts” is presented to the jury during the trial which is distinctly different from the set of facts set forth in the charging instrument. United States v. Muelbl, 739 F.2d 1175, 1180-81 (7th Cir.1984). Alternatively, to find a constructive amendment the crime charged in the indictment must be “materially different or substantially altered at trial, [so that] it is impossible to know whether the grand jury would have indicted for the crime actually proved.” Id. Kuna, 760 F.2d at 818, quoted in United States v. Mosley, 786 F.2d 1330, 1335 (7th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986). See also United States v. Peel, 837 F.2d 975, 979 (11th Cir.1988). However, when the court’s reading or description of the indictment alters the terms of the indictment in an insignificant manner, a material amendment is not found. United States v. Franco, 874 F.2d 1136, 1144 (7th Cir.1989) (no amendment in supplemental instructions); United States v. Williams, 798 F.2d at 1033 (no amendment in instructions); United States v. Kramer, 711 F.2d 789, 797 (7th Cir.), cert. denied, 464 U.S. 962, 104 S.Ct. 397, 78 L.Ed.2d 339 (1983) (no amendment in instructions). See also United States v. Colonia, 870 F.2d 1319,1325 (7th Cir.1989); United States v. Casey, 835 F.2d 148, 154 (7th Cir.1987); United States" }, { "docid": "9672944", "title": "", "text": "indictment is per se prejudicial, as it directly violates the grand jury clause of the Fifth Amendment. United States v. Weiss, 752 F.2d 777, 787 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). Such an amendment typically occurs when the proof at trial “broaden [s] the possible basis for conviction beyond what was contained in the indictment,” United States v. Zíngaro, 858 F.2d 94, 98 (2d Cir.1988) (citing United States v. Miller, 471 U.S. 130, 145, 105 S.Ct. 1811, 1819, 85 L.Ed.2d 99 (1985)), resulting in a defendant being “convicted on a charge the grand jury never made against him,” Stirone v. United States, 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960). However, where charges are “constructively narrowed” or where a generally framed indictment encompasses the specific legal theory or evidence used at trial, no constructive amendment occurs. United States v. Miller, 471 U.S. at 136-40, 105 S.Ct. at 1815-17; United States v. Zíngaro, 858 F.2d at 99. In the present case, the evidence supporting Morgenstern’s conviction on the check forgery count was wholly encompassed by the charge in the original indictment. The 10 checks on which the jury’s verdict rested were all included in the 13 on which Count Two was based. As a consequence, the proof admitted at trial did not broaden the possible basis of Morgenstern’s conviction nor render it substantially likely that he may have been convicted of a charge that the grand jury never made against him. For this reason, we find that no constructive amendment occurred and that the district court properly treated this issue simply as one of variance of proof. Cf. United States v. Weiss, 752 F.2d at 790. In viewing this matter as a problem of variance, the district court correctly instructed the jury that there had to be' a “substantial similarity” between the indictment and the proof in order to find the defendant guilty. See United States v. Heimann, 705 F.2d 662, 666-67 (2d Cir. 1983); United States v. Morris, 700 F.2d 427, 429 (1st Cir.), cert. denied, 461 U.S." }, { "docid": "1970501", "title": "", "text": "of an offense other than that charged in the indictment.” United States v. Mollica, 849 F.2d 723, 729 (2d Cir.1988) (citing Stirone v. United States, 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960)). In such cases, the amendment results in the defendant being “convicted on a charge the grand jury never made against him.” United States v. Morgenstern, 933 F.2d 1108, 1115 (2d Cir.1991) (citations and quotations omitted), cert. denied, 502 U.S. 1101, 112 S.Ct. 1188, 117 L.Ed.2d 430; see also United States v. Khan, 53 F.3d 507, 517 (2d Cir.1995). Such an amendment is “per se prejudicial, as it directly violates the grand jury clause of the Fifth Amendment.” Morgenstern, 933 F.2d at 1115; United States v. Delano, 55 F.3d 720, 729 (2d Cir.1995). Not all modifications constitute constructive amendments, however: “[Wjhere charges are ‘constructively narrowed’ or where a generally framed indictment encompasses the specific legal theory or evidence used at trial, no constructive amendment occurs.” Morgenstern, 933 F.2d at 1115. That is because “narrowing the scope of an indictment . . by redaetion[ ] does not offend the notice and review functions served by a grand jury’s issuance of an indictment.” United States v. Smith, 918 F.2d 1032, 1036 (2d Cir.1990), cert. denied, 498 U.S. 1125, 111 S.Ct. 1086, 112 L.Ed.2d 1191 (1991). “As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985). Miller, a mail fraud case, illustrates a permissible narrowing of an indictment. The disputed count charged the use of the mails to commit various fraudulent acts in connection with a burglary at the defendant’s place of business. Id. at 131, 105 S.Ct. at 1812-13. The indictment alleged that Miller had both consented to the burglary in advance and that he had lied to the" }, { "docid": "22051362", "title": "", "text": "in the indictment that do not broaden its scope are obviously not construed as such amendments. However, as explained above, sentencing for more than the offense charged constructively amends the indictment, and no one but the grand jury has the power do this. . The majority appears to suggest that the authority of Stirone has somehow been diminished by the Supreme Court's decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman held that some constitutional errors could be deemed harmless; it did not state that constitutional errors already deemed harmful by the Supreme Court could henceforth be regarded as harmless. Put differently, Chapman did not give appellate courts license to survey the landscape of constitutional errors and recate-gorize them as they wish. Until the Supreme Court holds that Stirone errors are harmless, its statement that some constitutional errors may be harmless has no effect whatsoever on the precedential force of its holding in Sti-rone. Our own court in Peel, decided long after Chapman, recognized that the law deems constructive amendments of a grand jury indictment to be reversible per se. See also United States v. Salinas, 601 F.2d 1279, 1290 (5th Cir.1979) (\"[A] constructive amendment of an indictment is considered to be reversible error per se if there has been a modification at trial in the elements of the crime charged.”). . In an effort to distinguish Stirone, the majority has invented yet another new constitutional rule holding that a constructive amendment occurs only when the change constitutes “an entirely new or different theory of the case....” The majority cites ho case law in support of this proposition; there is none. The majority alternatively argues that if there is a constructive amendment, it is one that narrows, rather than broadens, the allegations in the indictment by specifying a specific drug quantity. While a constructive amendment that truly narrows the allegations in an indictment will not constitute a fatal variation, see United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), that is obviously not what has occurred here. In" }, { "docid": "9672943", "title": "", "text": "could be directly proved by handwriting analysis would suffice to prove the forgery count, and the government was able to prove the direct alteration of only 10 checks. We note that Morgenstern is able to make this argument only because the government decided to obtain an indictment combining all of the instances of check forgery in one count rather than charging each one in a separate count. If it had followed the latter course, the three counts representing the three checks for which direct alteration had not been shown would simply not have been submitted to the jury. In any event, a constructive amendment “occurs when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.” United States v. Mollica, 849 F.2d 723, 729 (2d Cir.1988). It is well settled that the constructive amendment of an indictment is per se prejudicial, as it directly violates the grand jury clause of the Fifth Amendment. United States v. Weiss, 752 F.2d 777, 787 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). Such an amendment typically occurs when the proof at trial “broaden [s] the possible basis for conviction beyond what was contained in the indictment,” United States v. Zíngaro, 858 F.2d 94, 98 (2d Cir.1988) (citing United States v. Miller, 471 U.S. 130, 145, 105 S.Ct. 1811, 1819, 85 L.Ed.2d 99 (1985)), resulting in a defendant being “convicted on a charge the grand jury never made against him,” Stirone v. United States, 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960). However, where charges are “constructively narrowed” or where a generally framed indictment encompasses the specific legal theory or evidence used at trial, no constructive amendment occurs. United States v. Miller, 471 U.S. at 136-40, 105 S.Ct. at 1815-17; United States v. Zíngaro, 858 F.2d at 99. In the present case, the evidence supporting" }, { "docid": "405673", "title": "", "text": "his defense, by a motion for a bill of particulars. Fed.R.Crim.P. 7(f); United States v. Crippen, 579 F.2d 340, 342 (5th Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 802 (1st Cir.1960); Cefalu v. United States, 234 F.2d 522, 524 (10th Cir.1956); McMullen v. United States, 96 F.2d 574, 579 (D.C.Cir.1938). II. Whether a fatal variance exists between the facts proved and the charges in the indictment? Mosley commingles his fatal variance challenge with an assertion that the district court improperly amended the indictment. The two theories of error have some resemblance. However, “[a] judicial amendment of the indictment, whether implicit or explicit, is per se reversible error, ... while a variance in proof from the original indictment justifies reversal only when the defendant has been prejudiced.” United States v. Galiffa, 734 F.2d 306, 311 (7th Cir.1984) (citations omitted); see also United States v. Kuna, 760 F.2d 813, 817 (7th Cir.1985). “[A]n amendment occurs when ‘the offense proved at. trial was not fully contained in the indictment, for trial evidence had “amended” the indictment by broadening the possible bases for conviction from that which appeared in the indictment.’ ” Kuna, 760 F.2d at 817-18 (quoting United States v. Miller, — U.S.-, 105 S.Ct. 1811, 1816, 85 L.Ed.2d 99 (1985)). This Court has found a constructive amendment where a “complex set of facts” is presented to the jury during the trial which is distinctly different from the set of facts set forth in the charging instrument. United States v. Muelbl, 739 F.2d 1175, 1180-81 (7th Cir.1984). Alternatively, to find a constructive amendment the crime charged in the indictment must be “materially different or substantially altered at trial, [so that] it is impossible to know whether the grand jury would have indicted for the crime actually proved.” Id. Kuna, 760 F.2d at 818. Mosley again attacks Count 2. He asserts that the trial court amended the indictment by adding what he perceives to be the essential elements of a section 2314 violation. As noted in Issue I," }, { "docid": "3018376", "title": "", "text": "1233, 1237 (7th Cir.1988). The general unanimity instruction required the jury to find that the appellants committed at least three predicate acts. Thus, the appellants’ unanimity argument is unavailing. Lanier, Kramer and Fischer argue that the district court’s instructions on the CCE count constructively amended the indictment. The court instructed the jury that it could find that the appellants engaged in a continuing series of violations based upon the various predicate acts set forth in the indictment, “together with any additional violations of the drug laws” (emphasis added). The appellants object to the italicized portion of the instruction on the ground that it subjected them to further controlled substance violations beyond those which were charged in the indictment. See Stirone v. United States, 361 U.S. 212, 215-18, 80 S.Ct. 270, 272-74, 4 L.Ed.2d 252 (1960). The Supreme Court has long held that every defendant has a “ ‘substantial right to be tried only on charges presented in an indictment returned by a grand jury.’ ” United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 1817, 85 L.Ed.2d 99 (1985) (quoting Stirone, 361 U.S. at 217, 80 S.Ct. at 273). A constructive amendment of an indictment occurs when the evidence introduced by the prosecution broadens “the possible bases for conviction from that which appeared in the indictment.” Miller, 471 U.S. at 138, 105 S.Ct. at 1816. A constructive amendment of the indictment may also occur if the district court’s instructions to the jury broaden “the possible bases for conviction.” Id.; United States v. Keller, 916 F.2d 628, 632-36 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). It is well settled that “[a] judicial amendment of the indictment, whether implicit or explicit, is per se reversible error.” United States v. Galiffa, 734 F.2d 306, 311 (7th Cir.1984); United States v. Kuna, 760 F.2d 813, 817 (7th Cir.1985). The appellants contend that the trial court’s instruction broadened the possible bases for their CCE convictions by including new predicate acts which were not listed in the indictment. They contend that it is possible that the jury" }, { "docid": "2488680", "title": "", "text": "appellant would have to have made a full and complete disclosure of all the relevant information in order for the defense to be available to him. United States v. Carr, 740 F.2d 339, 347 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985); United States v. Thaggard, 477 F.2d 626 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973). “An alleged conflict of interest that obstructs the use of a particular strategy or defense is not significant unless the defense is plausible.” Foxworth v. Wain wright, 516 F.2d 1072, 1080 (5th Cir.1975); see also Nealy v. Cabana, 782 F.2d 1362, 1364 (5th Cir.1986). The record in this case clearly establishes that neither reliance upon advice of counsel nor shifting of the blame to Locke was a plausible defense. Soudan purposely withheld the information from his attorney. Therefore, no conflict of interest is presented by Locke’s involvement in the preparation of appellant’s tax returns. IV The rest of Soudan’s claims on appeal are also without merit. Appellant alleges that the government’s theory of prosecution falls outside of the scope of the language of the indictment. An amendment to the indictment occurs when the offense proved at trial is not fully contained in the indictment because trial evidence broadened the possible basis for conviction from that which appeared in the indictment. United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 1815, 80 L.Ed.2d 90 (1985). It is a long established principle that after an indictment has been returned its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Adams, 778 F.2d 1117 (5th Cir.1985). Courts must distinguish between constructive amendments of the indictment, which are reversible per se, and variances between indictment and proof, which are evaluated under the harmless error test. Stirone v. United States, 362 U.S. at 217, 80 S.Ct. at 273. Appellant argues that the district court should have instructed the jury that in order to find him guilty" }, { "docid": "23201853", "title": "", "text": "Rather, defendant claims that the evidence “in effect” amended Count Five. Such a “constructive amendment” falls somewhere between an actual amendment and a variance. This Circuit has held that a variance rises to the level of a constructive amendment when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment. Hathaway, 798 F.2d at 910. While the distinction between a variance and a constructive amendment is at best “shadowy,” see 3 C. Wright, Federal Practice and Procedure § 516, at 26 (2d ed.1982), the consequences of each are significantly different. A variance will not constitute reversible error unless “substantial rights” of the defendant have been affected. Hathaway, 798 F.2d at 910. “Substantial rights are affected only when a defendant shows ‘prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions.’ ” Id. (quoting United States v. Miller, 471 U.S. 130, 138 n. 5, 105 S.Ct. 1811, 1816 n. 5, 85 L.Ed.2d 99 (1985)); see also United States v. Hart, 70 F.3d 854, 860 (6th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1368, 134 L.Ed.2d 534 (1996). A constructive amendment, on the other hand, is “a variance that is accorded the per se prejudicial treatment of an amendment,” because, like an actual amendment, it infringes upon the Fifth Amendment’s grand jury guarantee. See Ford, 872 F.2d at 1235. Consequently, a constructive amendment warrants reversal of a conviction. See id. The defendant has the burden of proving the existence of a variance and that such variance is “fatal,” i.e. that the variance affected substantial rights or rose to the level of a constructive amendment. See United States v. Blandford, 33 F.3d 685, 701 (6th Cir.1994), cert. denied, 514 U.S. 1095, 115 S.Ct. 1821, 131 L.Ed.2d 743 (1995). Count Five of the indictment alleged that defendant had attempted" }, { "docid": "22051363", "title": "", "text": "constructive amendments of a grand jury indictment to be reversible per se. See also United States v. Salinas, 601 F.2d 1279, 1290 (5th Cir.1979) (\"[A] constructive amendment of an indictment is considered to be reversible error per se if there has been a modification at trial in the elements of the crime charged.”). . In an effort to distinguish Stirone, the majority has invented yet another new constitutional rule holding that a constructive amendment occurs only when the change constitutes “an entirely new or different theory of the case....” The majority cites ho case law in support of this proposition; there is none. The majority alternatively argues that if there is a constructive amendment, it is one that narrows, rather than broadens, the allegations in the indictment by specifying a specific drug quantity. While a constructive amendment that truly narrows the allegations in an indictment will not constitute a fatal variation, see United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), that is obviously not what has occurred here. In Miller, the indictment contained three counts of mail fraud, and after the government moved to dismiss the third count, the’defendant was tried before a jury and convicted of the first two. Thus, as the Court noted, the defendant was convicted \"based on trial proof that supports only a significantly narrower and more limited, though included, fraudulent scheme.” Id. at 131, 105 S.Ct. 1811. The Court held that there was not a fatal variation between the indictment and the conviction, writing that \"[a]s long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right'to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” Id. at 136, 105 S.Ct. 1811 (emphasis added). This holding makes clear why Apprendi error in the context of § 841 is not a case of “narrowing”: the problem with Apprendi error is precisely that the indictment has failed to allege an element of" }, { "docid": "23108749", "title": "", "text": "fields” did not establish the quantity of drugs as an element of the offense nor bind the Government to proving that Fletcher cultivated marijuana in each of the four fields. It merely amplified the charge as set forth in the indictment. Moreover, any discrepancy that may have existed between the Government’s bill and its proof at trial is harmless. When a defendant is convicted of charges not included in the indictment, an amendment has occurred which is per se reversible error. United States v. Keller, 916 F.2d 628, 633 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). When the evidence at trial differs from what is alleged in the indictment, then a variance has occurred. Such a variance violates a defendant’s rights and requires reversal only if it prejudices him, id., either by surprising him at trial and hindering the preparation of his defense, Howard, 590 F.2d at 567; United States v. Horton, 526 F.2d 884, 887 (5th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976), or by exposing him to the danger of a second prosecution for the same offense, Francisco, 575 F.2d at 819. As long as the proof at trial does not add anything new or constitute a broadening of the charges, then minor discrepancies between the Government’s charges and the facts proved at trial generally are permissible. See United States v. Miller, 471 U.S. 130, 145, 105 S.Ct. 1811, 1819, 85 L.Ed.2d 99 (1985) (finding no violation of the defendant’s Fifth Amendment right to indictment by a grand jury by a conviction obtained upon proof more narrow than what the indictment charged); Land v. United States, 177 F.2d 346, 348 (4th Cir.1949) (finding no error in a conviction where the government proved illegal activity on dates set forth in the bill of particulars and dates which varied slightly from those contained in the bill of particulars). Here, there was no unconstitutional amendment. The district court did not permit Fletcher to be convicted of an offense omitted from the indictment. Nor did the judge allow proof" }, { "docid": "23677980", "title": "", "text": "first superseding indictment. Pointing to the fact that the district court noted at the charging conference that it was “very difficult” to find evidence linking Kirby to the manufacture and distribution of methamphetamine, Kirby argues that the court impermissibly varied the indictment when it instructed that the jury could find him guilty if it found he was a conspirator solely in the distribution of cocaine. He contends that the jury should have been instructed to acquit if it did not find that Kirby was a participant in the single, over all conspiracy to manufacture and distribute methamphetamine and to distribute cocaine. The Fifth Amendment requires that a defendant be tried only on charges handed down by a grand jury. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). Thus, “after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Id. at 215-16, 80 S.Ct. at 272. A variance that broadens the indictment constitutes a constructive amendment and is reversible per se. Hunter, 916 F.2d at 599; Apodaca, 843 F.2d at 428. A variance rises to the level of a constructive amendment “ ‘if the evidence presented at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the indictment.’ ” Hunter v. State of New Mexico, 916 F.2d 595, 599 (10th Cir.1990) (quoting United States v. Apodaca, 843 F.2d 421, 428 (10th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988)). When an amendment occurs, the jury “convict[s] the defendant upon a factual basis that effectively modifies an essential element of the offense charged.” United States v. Chandler, 858 F.2d 254, 257 (5th Cir.1988). Kirby contends the district court effectively amended the indictment by instructing the jury that his participation in the cocaine conspiracy alone was sufficient to support a conviction. We recently addressed this issue in United States v. Mobile Materials, 881 F.2d 866, 874 (10th Cir.1989), where we pointed out that in United States" } ]

[ { "docid": "260603", "title": "", "text": "party is in control of the facts or the facts are peculiarly within the knowledge of the opposing party. In re Manhattan Investment Fund Ltd., 310 B.R. 500, 505 (Bankr.S.D.N.Y.2002). And when based upon information and belief, the complainant must set forth the facts upon which the belief is based. DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987). Courts take a liberal approach when reviewing allegations of fraud pled by a trustee because, as an outside party to the transactions in issue, the trustee must plead the claim of fraud for the benefit of the estate and its creditors based upon second-hand knowledge. Manhattan Investment, 310 B.R. at 505. Further, because establishing a transferor’s actual intent is ordinarily not susceptible to direct proof, courts look to the totality of the circumstances and certain “badges of fraud.” Manhattan Investment, 310 B.R. at 505. “Badges of fraud are circumstances that ... commonly accompany fraudulent transfers [and] their presence [leads to] and inference of intent to defraud.” Manhattan Investment, 310 B.R. at 505 n. 3. Certain examples of badges of fraud that courts have relied upon to infer the requisite intent include 1) a close relationship among parties to the transaction; 2) a secret or hasty transfer not in the usual course of business; 3) the inadequacy of the consideration; 4) the transferor’s knowledge of other creditor’s claims and the debtor’s inability to pay them; 5) use of dummies or fictitious parties; and 6) retention of control or reservation of rights in the transferred property by the transferor after the conveyance. Id. A court may infer the requisite intent based upon a confluence of these factors. Thus, circumstantial evidence is utilized to prove actual fraudulent intent. Further, as section 548(a)(1)(A) refers to “hinder, delay or defraud” in the disjunctive, intending any of these results is sufficient to render a transfer fraudulent. Enron alleges that transfers were made “with actual intent to hinder, delay or defraud” Enron’s creditors. Credit Suisse contends that, as plead, the fraud claims are conclusory and have not been pled with the requisite particularity. Enron counters" } ]

[ { "docid": "18153658", "title": "", "text": "B.R. 657, 660 (Bankr.E.D.N.Y.1993) (citation omitted). It is undisputed that Mr. Abramov transferred his interest in the house to his sister, and that he received the proceeds of that sale, well within the one-year period prior to the filing of the Abramovs’s joint petition. 11 U.S.C. § 727(a)(2)(A); (Tr.— Day 1 147:25-148:6). Proving that a debtor acted with actual intent to defraud is the most difficult element for a creditor to establish, because, ordinarily, the debtor is the only person able to testify regarding his or her intent and is unlikely to admit to fraudulent intent. Silverstein, 151 B.R. at 660, citing Job v. Calder (In re Calder), 907 F.2d 953 (10th Cir.1990). Therefore, courts have developed “badges of fraud” that are objective indications of actual intent to defraud creditors. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983), citing In re Freudmann, 362 F.Supp. 429, 433 (S.D.N.Y.1973), aff'd, 495 F.2d 816 (2d Cir.1974) (per curiam). Among the circumstances from which courts have inferred intent to defraud are: 1. the lack or inadequacy of consideration; 2. the family or other close relationship between the parties: 3. the retention by the transferor of possession, benefit or use of the property in question; 4. the financial condition of the trans-feror both before and after the transaction in question; 5. the existence or cumulative effect of a pattern or series of transactions or a course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and 6. the general chronology of the events and transactions under inquiry. Kaiser, 722 F.2d at 1582-83. The evidence demonstrates that the transfer of Boris Abramov’s one-half interest in the Forest Hills residence to his sister, five months before the commencement of this bankruptcy case, was made with intent to defraud the debtors’ creditors by reducing the assets available to satisfy their claims. With respect to the first badge of fraud, the consideration paid by Ms. Pinkasov to Mr. Abramov and his mother was clearly inadequate. Mr. Abramov stated in his Rule 2004 examination that he" }, { "docid": "14884239", "title": "", "text": "transaction. See U.S. v. McCombs, 30 F.3d 310, 328 (2d Cir.1994) (citing In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 198S, 731 F.2d 1032, 1041 (2d Cir.1984)) (The court held that under § 276, the “fraudulent nature of a conveyance may be inferred from the relationship among the parties to the transaction and the secrecy of the sale, or from inadequacy of consideration and hasty, unusual transactions.”); Hassett v. Goetzmann, 10 F.Supp.2d 181, 188 (N.D.N.Y.1998); Breeden v. L.I. Bridge Fund, L.L.C. (In re The Bennett Funding Group, Inc.), 220 B.R. 739, 742 (Bankr.N.D.N.Y.1997). The Second Circuit has adopted certain “badges of fraud” or presumptions as circumstantial evidence of actual intent. See Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983); Hassett, 10 F.Supp.2d at 188; Bennett Funding, 220 B.R. at 755. These may include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pen-dency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Kaiser, 722 F.2d at 1582. Other relevant recognized indicia of fraud are: 1) a transfer for no consideration when the transfer- or and the transferee know of the claims of creditors and know that creditors cannot be paid and 2) the existence of an unconscionable discrepancy between the value of the property transferred and the consideration received therefor. Bennett Funding, 220 B.R. at 755 (citing Collier, ¶ 548.04[2][b] at 548-24). 1. Porush Porush faces two claims of actual fraud: the first based on the SP and NCP Payments and the second, on the S & B Payments. The Trustee alleges that the SP and NCP Agreements were executed as part of Porush’s and Belfort’s scheme" }, { "docid": "11852782", "title": "", "text": "Oakmont court notes, “[t]he intent of the transferee only becomes relevant as an affirmative defense if the defendant is not the initial transferee.” Stratton Oakmont, 234 B.R. at 318 (citing Golden Budha Corp., 931 F.2d at 201). Actual fraudulent intent is rarely susceptible to direct evidence and may be inferred from the circumstances surrounding the transaction. As the Second Circuit has explained: “Due to the difficulty of proving actual intent to hinder, delay, or defraud creditors, the pleader is allowed to rely on ‘badges of fraud’ to support his case, i.e., circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent.” In re Sharp Int’l Corp., 403 F.3d at 56 (quoting Wall St. Assocs. v. Brodsky, 257 A.D.2d 526, 529, 684 N.Y.S.2d 244, 247 (1st Dep’t 1999)). See In re MarketXT Holdings Corp., 376 B.R. at 405. These badges of fraud include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir.1983). But this may not be the end of the inquiry. Where the burden of showing actual fraudulent intent is met, New York’s Debtor and Creditor Law offers protection to an innocent purchaser for value. DCL Section 278(2) states: A purchaser who without actual fraudulent intent has given less than a fair consideration for the conveyance or obligation, may retain the property or obligation as security for repayment. N.Y. Debt. & Ceed. Law § 278(2). An innocent purchaser must affirmatively show good faith in order to take advantage of Section 278(2). Emmi v. Patane," }, { "docid": "17543442", "title": "", "text": "commit fraud or (2) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” See In re Saba Enters., Inc., 421 B.R. at 642 (internal quotation marks and citations omitted). The following badges of fraud, when present in a complaint, may create a strong inference of fraudulent intent: (i) a close relationship among the parties to the transaction; (ii) a questionable or hasty transfer not in the ordinary course of business; (iii) the existence of an unconscionable discrepancy between the value of the property transferred and the consideration received therefor; (iv) the chronology of the events and transactions under inquiry; (v) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurrence of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (vi) whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. See, e.g., In re Kaiser, 122, F.2d 1574, 1582-83 (2d Cir.1983) (upholding an intentional fraudulent transfer claim based on the presence of multiple badges of fraud); In re Enron Corp., 328 B.R. 58, 73-75 (Bankr.S.D.N.Y.2005) (denying motion to dismiss where plaintiff alleged sufficient badges of fraud so as to satisfy pleading standard). The Amended Complaint pleads sufficient “badges of fraud” to satisfy Rule 9(b) and create a “strong inference of fraudulent intent.” Specifically, the Amended Complaint alleges the existence of the following factors: (i) LBHI was wholly dependent on JPMC for the conduct of its business, and JPMC was an insider with unparalleled access to information regarding LBHI’s state of affairs and future plans (¶¶ 2, 4, 35); (ii) each transaction occurred on a rushed basis pri or to LBHI’s bankruptcy, with little or no negotiation, and was unprecedented in the prior course of business between the parties, and the industry generally (¶¶ 46-48, 58, 66-67); (iii) LBHI received no consideration in exchange for incurring billions of dollars in potential obligations pursuant to the agreements, or for transferring billions of dollars in LBHI assets to JPMC (¶¶ 5, 38, 56); (iv) these" }, { "docid": "15172397", "title": "", "text": "measure of recovery, the defendants contend that recovery under § 550(a), if allowed, should restore the debtors’ estate to the financial condition it would have been in had the transfer not occurred. The defendants claim that basing recovery-on the allocation that Mediplex assigned to DSC and BSC is misplaced because the Me-diplex transaction took place more than two years after the transfer, included other surgical centers in addition to DSC and BSC, and was structured'to allow Mediplex to receive favorable tax treatment on its acquisition. IV. DISCUSSION A. ACTUAL FRAUD The trustee bears the burden of establishing every element of a voidable transfer under § 548 of the Bankruptcy Code. See Rubin v. Mfrs. Hanover Trust Co., 661 F.2d 979, 993 (2d Cir.1981); Ossen v. Bernatovich (In re Nat’l Safe Northeast, Inc.), 76 B.R. 896, 901 (Bankr.D.Conn.1987). Although courts disagree whether actual fraud under § 548(a)(1) must be proven by clear and convincing evidence, see, e.g., Ossen, 76 B.R. at 901, or a preponderance of the evidence, see, e.g:, Thompson v. Jonovich (In re Food & Fibre Protection, Ltd.), 168 B.R. 408, 418 (Bankr.D.Ariz.1994), the parties in the instant proceeding agree that the proper standard is clear and convincing evidence. Because actual fraud is rarely proven by direct evidence, courts infer fraudulent intent by examining the circumstances surrounding the transfer to determine whether any “badges of fraud” are present. See, e.g., Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983). Badges of fraud recognized by the Second Circuit include (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and ' (6) the general chronology of the events and transactions under inquiry. Id." }, { "docid": "1129814", "title": "", "text": "In re Edwards, 67 B.R. 1008, 1010 (Bankr. D.Conn.1986). Where persuasive evidence of a false statement under oath has been produced by a plaintiff, the burden shifts to the defendant to prove that it was not intentionally false, In re Tully, 818 F.2d 106, 110 (1st Cir.1987); In re Arcuri, supra, 116 B.R. at 884, and fraudulent intent may be inferred, if the false statement is not explained. In re Arcuri, supra, 116 B.R. at 884. A debtor’s disclosure of information previously omitted from schedules is some evidence of innocent intent, but this inference is “slight where the debtor has ... amended his schedules after the trustee or creditors have already discovered what the debtor sought to hide.” Matter of Kilson, 83 B.R. 198, 203 (Bankr. D.Conn.1988). Courts may consider the debtor’s education, business experience, and reliance on counsel when evaluating the debtor’s knowledge of a false statement, but the debtor is not exonerated by pleading that he or she relied on patently improper advice of counsel. In re Kelly, 135 B.R. 459, 462 (Bankr.S.D.N.Y.1992). Furthermore, “[a] debtor cannot, merely by playing ostrich and burying his head deeply enough in the sand, disclaim all responsibility for statements which he has made under oath.” In re Tully, supra, 818 F.2d at 111. A plaintiff can rarely produce direct evidence of fraudulent intent; the requisite actual intent to defraud may therefore be established through proof of sufficient “badges of fraud.” In re Kaiser, 722 F.2d 1574, 1582-83 (2d Cir.1983) (citations omitted). Such badges of fraud include reservation of rights in or the beneficial use of the transferred assets; inadequate consideration; close friendship or relation to the transferee; the financial condition of the transferor both before and after the transfer; and “ ‘the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors.’ ” Id., quoting In re May, 12 B.R. 618, 627 (Bankr.N.D.Fla.1980). [WJhere there has been a “pattern” of falsity, or a “cumulative effect” of falsehoods, a court may" }, { "docid": "21511575", "title": "", "text": "Tereza Defendants’ Mem. at 46^47. The Trustee argues that the fraud allegations in the Amended Complaint are pled with specificity and “are detailed and explicit and are supported by reference to specific events, actions, persons, documents and dates.” Trustee’s Mem. at 35. The Trustee’s factual allegations supporting claims for intentional fraudulent transfers are subject to the heightened pleading requirements of Rule 9(b). See Atlanta Shipping Corp. v. Chemical Bank, 818 F.2d 240, 251 (2d Cir.1987). At the same time, this scrutiny should take place “while taking into account that the Trustee is entitled to some leeway in the areas of scienter and particularity because he has no personal knowledge of the facts.” In re Monahan Ford Corp. of Flushing, 340 B.R. at 37-38 (citations omitted). A plaintiff may allege actual intent “by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Westdeutsche Landesbank Girozentrale v. SNC-Lavalin Constructors, Inc. (In re Enron Corp.), 2006 WL 2400083, at *8 (Bankr.S.D.N.Y.2006) (citing Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001)). Courts look to certain “badges of fraud” as circumstantial evidence of actual intent. See Sharp Int’l Corp. v. State St. Bank and Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 56 (2d Cir.2005); Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983). These include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question [by the debtor]; (4) the financial condition of the [transferor] both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pen-dency or threat of suits by creditors; and (6) the general chronology of the events and transaction under inquiry. In re Kaiser, 722 F.2d at 1582-83. Accordingly, in order to state a claim, the Amended Complaint must allege with particularity facts that give rise to an inference that the H.I.L. Transfers, the Tereza Transfers," }, { "docid": "16898063", "title": "", "text": "of the transferor. McCombs, 30 F.3d at 328; Le Café Creme, Ltd. v. Roux (In re Le Café Creme, Ltd.), 244 B.R. 221, 239 (Bankr.S.D.N.Y.2000). The party asserting a claim for fraudulent conveyance has the burden of proving actual intent to defraud by clear and convincing evidence. McCombs, 30 F.3d at 328 (citing ACLI Gov’t Sec. v. Rhoades, 653 F.Supp. 1388, 1394 (S.D.N.Y.1987)). It is the intent of the transferor and not the intent of the transferee that is dispositive under DCL § 276. Le Café Creme, 244 B.R. at 239; Crowthers, 129 B.R. at 999 (citing Brody v. Pecoraro, 250 N.Y. 56, 61-62, 164 N.E. 741 (1928)). Actual intent to defraud must be pleaded in compliance with the requirements of Fed.R.Civ.P. 9(b). Atlanta Shipping, 818 F.2d at 251. The Second Circuit has found certain “badges of fraud” to be circumstantial evidence of actual intent, because actual intent is rarely shown by direct evidence. Badges of fraud include: 1. lack or inadequacy of consideration; 2. family, friendship or close associate relationship between the parties; 3. retention of possession, benefit or use of the property in question by the debtor; 4. the financial condition of the party sought to be charged both before and after the transaction in question; 5. the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and 6. the general chronology of the events and transactions under inquiry. Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir.1983); Le Café Creme, 244 B.R. at 239. None of the badges of fraud are alleged in this case. Sharp argues that this is irrelevant because the complaint has sufficiently alleged facts that are direct evidence of actual fraudulent intent. (Doc. 6 at 18-19.) According to Sharp, this includes allegations that the Spitzes grossly inflated Sharp’s reported sales and revenues; that the Spitzes gave fraudulent financial statements; and that the Spitzes purchased State Street’s silence with the payment of $12,250,024. In order to state a" }, { "docid": "4566960", "title": "", "text": "fraud” as circumstantial evidence of fraudulent intent. These badges of fraud include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. See In re Soza, 542 F.3d 1060, 1067 (5th Cir.2008). No particular “badge” is dis-positive, and courts typically require the confluence of multiple badges to establish fraudulent intent. In re Equipment Acq. Resources, Inc., 481 B.R. 422, 431 (Bankr.N.D.Ill.2012) (“A single badge of fraud is insufficient to establish intent, but the presence of several may create a presumption that the debts acted with the requisite intent to defraud.”). The Trustee’s allegations must still comply with Rule 9(b) and plead specific facts showing the circumstances constituting fraud. See In re Sharp Intern. Corp., 403 F.3d 43, 56, (2d Cir.2005); In re Charys Holding Co., Inc., 2010 WL 2774852, at *3-4 (Bankr.D.Del. July 14, 2010). Here, the Trustee has pled facts showing that the transfers were made to an insider and that Gulf Fleet was insolvent before and after the transfers, but pleads no facts (as opposed to conclusions) explaining how these transfers, which satisfied an antecedent debt, could have impacted Gulf Fleet’s solvency. With respect to “lack or inadequacy of consideration,” these payments were made to satisfy antecedent debts and, as explained above, resulted in the receipt of reasonably equivalent value by definition. See 11 U.S.C. § 548(d)(2)(A). The Trustee also has not pled facts showing that Gulf Fleet retained “possession, benefit or use” of the funds paid pursuant to the CSA and the PSA. Nor does the Complaint include facts showing that the transfers resulted from a course of conduct undertaken after" }, { "docid": "15403488", "title": "", "text": "(P’s Opp., p. 22.) Second, Plaintiffs then assert that Softbank’s intent can be imputed to MarketXT as a consequence of Soft-bank’s “control” over the Debtor. There is little or no support for the proposition that a creditor’s insistence on its right to payment constitutes a pri-ma facie scheme to “hinder or delay” other creditors within the meaning of the fraudulent conveyance laws. In any event, intent of the transferee is imputed to the transferor only where the transferee is in a position to control “the debtor’s disposition of his property.” Jackson v. Mishkin (In re Adler, Coleman Clearing Corp.,) 263 B.R. 406, 443 (S.D.N.Y.2001), citing 5 King, et al., Collier on Bankruptcy ¶ 548.04[1], at 548-24. As previously discussed, the Complaint’s allegations are not generally adequate on the issue of control, and Plaintiffs certainly have not adequately pled that Softbank was able to control the Debtor’s disposition of its property. Just the opposite seems to have occurred, with defaults on the part of the Debtor and collection actions by Softbank. The “badges of fraud” on which Plaintiffs rely to demonstrate the parties’ “actual fraudulent intent” are also inadequate. Badges of fraud include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pen-dency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Le Café Crème, Ltd. v. Le Roux (In re Café Crème, Ltd.,) 244 B.R. 221, 239 (Bankr.S.D.N.Y.2000), quoting Salomon v. Kaiser (In re Kaiser,) 722 F.2d 1574, 1582 (2d Cir.1983); see also Breeden v. L.I. Bridge Fund, L.L.C. (In re The Bennett Funding Group, Inc.,) 220 B.R. 743, 755 (Bankr.N.D.N.Y.1997). Here, there were no familial or personal relationships between the parties; on" }, { "docid": "5491387", "title": "", "text": "Sharp Int’l Corp.), 403 F.3d 43, 56 (2d Cir.2005); United States v. McCombs, 30 F.3d 310, 328 (2d Cir.1994) (“[WJhere actual intent to defraud creditors is proven, the conveyance will be set aside regardless of the adequacy of consideration given.”); Christian Bros. High Sch. Endowment v. Bayou No Leverage Fund, LLC (In re Bayou Group, LLC), 439 B.R. 284, 304 (S.D.N.Y. 2010). The debtor/transferor’s intent is critical in this analysis. See United States v. McCombs, 30 F.3d at 328; In re Bayou Group, LLC, 439 B.R. at 304. As the fraudulent intent of a debtor is “rarely susceptible to direct proof’, courts must determine whether certain “badges of fraud” exist that establish the debtor’s intent at the time of the transfers. In re Kaiser, 722 F.2d 1574, 1582 (2d Cir.1983); see In re Sharp Int’l Corp., 403 F.3d at 56 (noting that “badges of fraud” are “circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent.”) (internal citations and quotation marks omitted). The Second Circuit in In re Kaiser articulated these “badges of fraud” to include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. 722 F.2d at 1582-1583. The establishment of several “badges of fraud” show “clear and convincing evidence of [the debtor’s] actual intent.” In re Actrade Fin. Techs., Ltd., 337 B.R. at 809 (internal citations omitted). The Court has already determined that Trustee has not shown that the salaries were excessive or improper in light of Defendants’ employment with the Debtors, and therefore the Trustee’s Sixth Cause of Action with respect to the" }, { "docid": "4351872", "title": "", "text": "p. 10]; and, as the successors to Flutie Entertainment, Flutie Bros and Entertainment USA, Inc. for $191,089 in loans [Trustee Trial Ex. 119, p. 10]. (v) Pursuant to New York Debtor and Creditor Law § 276 26. Every conveyance made and every obligation incurred with actual intent, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditor. To prevail on a claim under section 276 of the New York Debtor and Creditor law, the Trustee must establish that (1) the thing transferred has value out of which the creditor could have realized a portion of its claim; (2) that this thing was transferred or disposed of by debtor; and (3) that the transfer was done with actual intent to defraud. Gentry v. Kovler (In re Kovler), 249 B.R. 238, 243 (Bankr.S.D.N.Y.2000). 27. The relevant intent may be inferred from the facts and circumstances surrounding the transfer. Cadle Co. v. Newhouse, 2002 WL 1888716, at *6 (S.D.N.Y. Aug. 16, 2002) (citing U.S. v. Carlin, 948 F.Supp. 271, 277 (S.D.N.Y 1996)). Such facts and circumstances, which may be considered “badges of fraud,” include: (1) lack or inadequacy of consideration; (2) family, friendship or close associate relationship between the parties; (3) retention of possession, benefit, or use of the property in question; (4) financial condition of the party sought to be charged both before and after the transaction in question; (5) existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties or pendency or threat of suits by creditors; and (6) general chronology of the events and transactions under inquiry. Salomon v. Kaiser (In re Kaiser), 122 F.2d 1574, 1582-83 (2d Cir.1983). Almost all of the badges are abundantly visible in this case. 28. Flutie N.Y. transferred its model management contracts and/or its arrangements for the services of the models it represented to Flutie Media and other entities controlled by Michael Flutie with actual intent to hinder, delay or defraud either present or future creditors and for no consideration. Flutie" }, { "docid": "6503046", "title": "", "text": "31 B.R. 224, 225 n. 1 (W.D.Wis.1983) (“the question of whether a proceeding is ‘related’ or not depends upon whether the party opposing the debtor is a creditor”). Ill In turning to the substantive issues, appellant Gerald Kaiser maintains that the facts do not establish a scheme of intent to defraud creditors. We disagree. Fraudulent intent is rarely susceptible to direct proof. In re Saphire, 139 F.2d 34, 35 (2d Cir.1943). Therefore, courts have developed “badges of fraud-” to establish the requisite actual intent to defraud. In re Freudmann, 362 F.Supp. 429, 433 (S.D.N.Y. 1973), aff’d, 495 F.2d 816 (2d Cir.1974) (per curiam). Among the circumstances from which courts have inferred intent to defraud are: [Concealment of facts and false pretenses by the transferor, reservation by him of rights in the transferred property, his absconding with or secreting the proceeds of the transfer immediately after their receipt, the existence of an unconscionable discrepancy between the value of property transferred and the consideration received therefor ... [and] the creation by an oppressed debtor of a closely-held corporation to receive the transfer of his property. 4 Collier on Bankruptcy ¶ 548.02[5] at 548-34 to 38 (L. King 15th ed. 1983) (footnotes omitted). The court in In re May, 12 B.R. 618, 627 (Bkrtcy.N.D.Fla.1980), characterized the badges of fraud as follows: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. The transfer of property by the debtor to his spouse while insolvent, while retaining the use and enjoyment of the property, is a classic badge of fraud. See, e.g., In re Cadarette, 601 F.2d 648, 651" }, { "docid": "15172398", "title": "", "text": "& Fibre Protection, Ltd.), 168 B.R. 408, 418 (Bankr.D.Ariz.1994), the parties in the instant proceeding agree that the proper standard is clear and convincing evidence. Because actual fraud is rarely proven by direct evidence, courts infer fraudulent intent by examining the circumstances surrounding the transfer to determine whether any “badges of fraud” are present. See, e.g., Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983). Badges of fraud recognized by the Second Circuit include (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and ' (6) the general chronology of the events and transactions under inquiry. Id. at 1582-83. “The presence of a single badge of fraud may spur mere suspicion; the confluence of several can constitute conclusive evidence of actual intent to defraud.... ” Acequia v. Clinton (In re Acequia, Inc.), 34 F.3d 800, 806 (9th Cir.1994), citing Max Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 1254-55 (1st Cir.1991). The court concludes that the trustee has not carried his burden of proving actual fraud under either evidentiary standard. The trustee offered no proof, other than Goo-gel’s testimony, of an agreement to reconvey or pay additional consideration for the stock. Googel’s unsupported testimony is not sufficient to prevail over the denials of the other parties to the transfer and the specific language of the Agreement. Although Googel claimed that Steinberg promised to pay additional consideration for what the stock was really worth, Steinberg denied making such a promise and Simons denied agreeing to provide additional funds or authorizing Stein-berg to do so. Moreover, the Agreement, which states that it is the “entire agreement.” recites only consideration of $100,000. The" }, { "docid": "17543441", "title": "", "text": "[and/or New York state fraudulent conveyance law] must normally allege (1) the property subject to the transfer, (2) the timing and, if applicable, frequency of the transfer and (3) the consideration paid with respect thereto.” See In re Saba Enters., Inc., 421 B.R. at 640 (citations omitted). “In contrast to the particularity requirement for pleading fraud under Rule 9(b), the intent element of an intentional fraudulent conveyance claim may be alleged generally so long as the plaintiff alleges ‘facts that give rise to a strong inference of fraudulent intent’.” In re Saba Enters., Inc., 421 B.R. at 642 (citation omitted); see also Sharp Int’l Corp. v. State St. Bank & Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 56 (2d Cir.2005) (citation omitted) (noting that, “[d]ue to the difficulty of proving intent ... [a plaintiff] may rely on ‘badges of fraud’ to support his case”). This strong inference of fraudulent intent, in turn, may be established either “(1) by alleging facts demonstrating that the Defendants had both the motive and the opportunity to commit fraud or (2) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” See In re Saba Enters., Inc., 421 B.R. at 642 (internal quotation marks and citations omitted). The following badges of fraud, when present in a complaint, may create a strong inference of fraudulent intent: (i) a close relationship among the parties to the transaction; (ii) a questionable or hasty transfer not in the ordinary course of business; (iii) the existence of an unconscionable discrepancy between the value of the property transferred and the consideration received therefor; (iv) the chronology of the events and transactions under inquiry; (v) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurrence of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (vi) whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. See, e.g., In re Kaiser, 122, F.2d 1574, 1582-83 (2d Cir.1983) (upholding an intentional fraudulent transfer claim" }, { "docid": "10756305", "title": "", "text": "this motion to dismiss is therefore whether the Trustee has adequately pled the elements of actual fraud with the requisite particularity, taking into consideration that courts take a more liberal approach when construing allegations of actual fraud pled by a trustee, because “a trustee is an outsider to the transaction who must plead fraud from second-hand knowledge.” Picard v. Taylor (In re Park S. Sec., LLC), 326 B.R. 505, 517-18 (Bankr.S.D.N.Y.2005); In re O.P.M. Leasing Servs., Inc., 35 B.R. 854, 862 (Bankr.S.D.N.Y.1983) aff'd in part, rev’d in part on other grounds, 48 B.R. 824 (S.D.N.Y.1985). “[T]o state an actual fraudulent transfer claim with Rule 9(b) particularity, a party must ordinarily allege: (i) the property that was conveyed; (ii) the timing and, if applicable, frequency of the transfer; and (iii) the consideration (if any) paid for the transfer.... In addition to specifically identifying the transfers to be avoided, a party must also sufficiently plead the element of fraudulent intent required by Rule 9(b).” O’Connell v. Penson Fin. Services, Inc. (In re Arbco Capital Mgmt., LLP), 07-13283(SCC), 498 B.R. 32, 40-41 (Bankr.S.D.N.Y.2013). Due to the difficulty of proving actual intent, a plaintiff may plead “badges of fraud” that give rise to an inference of intent. Sharp, 403 F.3d at 56. Common badges of fraud include: “(1) lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; (6) the general chronology of the events and transactions under inquiry; (7) a questionable transfer not in the usual course of business; and (8) the secrecy, haste, or unusualness of the transaction.” Actrade Fin. Technologies Ltd., 337 B.R. at 809. The presence or absence of one badge of fraud is not conclusive. Dobin v." }, { "docid": "10750829", "title": "", "text": "of the transaction.”) (internal citation omitted); In re MarketXT Holdings Corp., 361 B.R. at 396 (suggesting the same in the context of actual fraud claims brought under both Section 548 of the Code and Section 276 of the NYDCL); In re Cassandra Group, 338 B.R. 583, 598 (Bankr.S.D.N.Y.2006) (stating in connection with a Section 276 claim that “where certain [bjadges of [fjraud are present, an actual intent to hinder, delay or defraud either present or future creditors ... is presumed.”) (internal quotation marks omitted); cf. Sullivan, 373 F.Supp.2d at 306 (suggesting that providing facts relating to the badges of fraud is a means of meeting the particularity, as well as the intent pleading, requirements under Rule 9(b) when pleading ■ from second-hand knowledge). The “badges of fraud” on which a trustee may rely include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; (6) the general chronology of the event and transactions under inquiry; (7) a questionable transfer not in the usual course of business; and (8) the secrecy, haste, or unusualness of the transaction. In re Actrade Fin. Techs. Ltd., 337 B.R. at 809; see also Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir. 1983); Sullivan, 373 F.Supp.2d at 306-07; In re MarketXT Holdings Corp., 361 B.R. at 396. There is no apparent agreement on whether fraudulent intent may be pleaded adequately based on the existence of only one badge of fraud. Compare In re Cas- Sandra Group, 338 B.R. at 598 (upholding a Section 276 actual fraud claim based on the presence of only one badge: inadequate consideration) with In re MarketXT Holdings Corp., 361 B.R. at 396-97 (holding" }, { "docid": "1366038", "title": "", "text": "to establish fraudulent intent under section 548(a)(1)(A) of the Code). . The Trustee has adequately pled that GCC is plausibly the alter ego of Merkin, who \"dominated” GCC as its sole director and sole shareholder, using GCC as a mere instrument to facilitate Merkin’s personal interests, rather than any corporate ends. Compl. at ¶ 34. Accordingly, Merkin and GCC are treated as one unit for purposes of determining the sufficiency of the Trustee’s allegations. S. New England Tel. Co. v. Global NAPs Inc., No. 08-CV-4518, 2010 WL 3325962, at *17 (2d Cir. Aug. 25, 2010) (\"[O]nce alter ego status is established, 'the alter egos are treated as one entity’ for purposes of ... liability.”) (internal quotations omitted). . Many courts use “badges of fraud'' as a means of pleading fraudulent intent based on circumstantial evidence. See In re Saba Enters., Inc., 421 B.R. at 643; Picard v. Taylor (In re Park South Sec., LLC.), 326 B.R. 505, 518 (Bankr.S.D.N.Y.2005). It appears, however, that these badges are designed to establish the fraudulent intent of a transferor, rather than a transferee. Given that the Trustee has adequately pled the transferees’ intent under the two-prong test above, the Court need not make a finding with respect to these badges. The above notwithstanding, certain of the badges are satisfied here, including badges (1), (2) and (8). The badges are: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; (6) the general chronology of the event and transactions under inquiry; (7) a questionable transfer not in the usual course of business; and (8) the secrecy, haste, or unusualness of the transactions. Id. With respect to the first badge, and as" }, { "docid": "10750830", "title": "", "text": "charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; (6) the general chronology of the event and transactions under inquiry; (7) a questionable transfer not in the usual course of business; and (8) the secrecy, haste, or unusualness of the transaction. In re Actrade Fin. Techs. Ltd., 337 B.R. at 809; see also Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir. 1983); Sullivan, 373 F.Supp.2d at 306-07; In re MarketXT Holdings Corp., 361 B.R. at 396. There is no apparent agreement on whether fraudulent intent may be pleaded adequately based on the existence of only one badge of fraud. Compare In re Cas- Sandra Group, 338 B.R. at 598 (upholding a Section 276 actual fraud claim based on the presence of only one badge: inadequate consideration) with In re MarketXT Holdings Corp., 361 B.R. at 396-97 (holding that an actual fraudulent transfer claim fails because, inter alia, the parties’ fraudulent intent was insufficiently alleged given the total absence of such badges except inadequacy of consideration); In re Actrade Fin. Techs. Ltd., 337 B.R. at 809-10 (stating that “[t]he existence of a badge of fraud is merely circumstantial evidence and does not constitute conclusive proof of actual intent” and holding an intentional fraudulent conveyance claim to be insufficiently pleaded based on, inter alia, the absence of any badge of fraud except for one: the presence of questionable transactions). In the present ease, however, several badges of fraud are present, and the existence of several badges of fraud constitutes “clear and convincing evidence of actual intent,” In re Actrade Fin. Techs. Ltd., 337 B.R. at 809 (citing 4 L. King, COLLIER ON BANKRUPTCY ¶ 548.04[2] (15th ed.1983)); see also In re Kaiser, 722 F.2d at 1583 (upholding an intentional fraudulent conveyance claim based on the presence of multiple badges of fraud, including the retention of use of transferred property, lack of consideration and the" }, { "docid": "17702550", "title": "", "text": "to direct evidence and therefore may be gleaned from the circumstances surrounding the alleged fraudulent transaction. The Second Circuit has adopted certain “badges of fraud” or presumptions as circumstantial evidence of actual intent. See Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582 (2d Cir.1983). These may include: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of a pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pen-dency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Kaiser, 722 F.2d at 1582. Other relevant recognized indicia of fraud are: (i) a transfer for no consideration when the transfer- or and the transferee know of the claims of creditors and know that creditors cannot be paid and (ii) the existence of an unconscionable discrepancy between the value of the property transferred and the consideration received therefor. Breeden v. Bennett (In re The Bennett Funding Group, Inc.), 220 B.R. 743, 755 (Bankr.N.D.N.Y.1997) (citing 5 L. King, Collier on BanKruptcy, ¶ 548.04[2][b] at 548-24 (15th ed. rev.1997)). Under DCL section 276, actual intent to defraud must be proven by clear and convincing evidence. See United States v. McCombs, 30 F.3d 310 (2d Cir.1994). “It is the intent of the transferor and not that of the transferee that is dis-positive.” Stratton Oakmont, 234 B.R. 293, 318 (citing HBE Leasing Corporation v. Frank, 61 F.3d 1054, 1059 n. 5 (2d Cir.1995)) (to prove actual fraud under section 276, a creditor must show intent to defraud on the part of the transferor); Crowthers McCall Pattern, Inc. v. Lewis (In re Crowthers McCall Pattern, Inc.), 129 B.R. 992, 999 (S.D.N.Y.1991): Brody v. Pecoraro, 250 N.Y. 56, 61-62, 164 N.E. 741 (1928) (Cardozo, J.); Leone v. Sabbatino, 235 A.D.2d 460," } ]

[ { "docid": "23628796", "title": "", "text": "RIVES, Circuit Judge. A rehearing before the court en banc was ordered by a majority of the judges of this Circuit, 28 U.S.C.A. § 46(c), to settle the questions upon which the judges composing the original panel were in disagreement. See Howard v. United States, 5 Cir., 229 F.2d 602. As to the most important question, the proper test of criminal responsibility where insanity is asserted, we note that the Court of Appeals of the District of Columbia has heretofore taken the position that the Supreme Court in Davis v. United States, 165 U.S. 373, 375, 17 S.Ct. 360, 41 L.Ed. 750, at least impliedly recognized the test as being either the incapacity from some mental disease or defect to distinguish between right and wrong with respect to the act, or the inability from such disease or defect to refrain from doing wrong in the commission of the act, and that its decision so indicating has been cited with apparent approval by the Supreme Court. See also, Matheson v. United States, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631; Weihoffen, “Mental Disorder as a Criminal Defense”, pp. 129, 130. In the face of such recognition by the Supreme Court of a test of criminal responsibility, we do not feel at liberty to consider and decide whether in our opinion the recent modification of such test in the District of Columbia is sound or unsound, nor whether some other test should be adopted. This Circuit follows the law as stated by the Supreme Court and leaves any need for modification thereof to that Court, while the District of Columbia Circuit is entrusted with a considerable degree of autonomy with respect to law enforcement in the District. We, therefore, leave unchanged the test of criminal responsibility as thus established. This Court is not in position to hold that the district court erred in treating insanity as a jury issue. Only slight evidence of insanity of a defendant at the time of commission of the act is required to raise the issue for submission to the jury. We think, however, that" } ]

[ { "docid": "23522643", "title": "", "text": "the person is admissible in evidence.’” United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 976-77 (1972) (en banc) (quoting A. Goldstein, The Insanity Defense 54 (1967), which cites to “1 Wigmore Evidence § 228 (1940) and numer ous cases”). “Any evidence of aberrant conduct or action, whether before or after the act charged, is accordingly admissible under the plea,” United States v. James Edwin Smith, 507 F.2d 710 (4th Cir. 1974) (emphasis added), and the trial judge should be free in his admission of all possibly relevant evidence. Pope v. United States, 372 F.2d 710, 736 (8th Cir. 1967) (en banc), remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). We believe that Hartfield’s offer of proof of his mental symptomology and subsequent hospitalization was abundantly sufficient to raise the issue of his sanity so as to bring this case within the rule requiring the admission of such evidence. See also Gordon v. United States, 438 F.2d 858, 883—86 (5th Cir. 1971), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1972), United States v. Chandler, 393 F.2d 920 (4th Cir. 1968) (en banc). We have found no authority for the proposition that so-called expert testimony is required as indispensable to rebutting prosecution proof of sanity. In Davis v. United States, 364 F.2d 572 (10th Cir. 1966), the appellant offered evidence that she had periods of blackout from time to time, but none of her witnesses testified as to her condition at the particular time of the several offenses in question. An instruction given in that case was held to be “too restrictive in that it limits the accused’s evidence as to her mental condition at the time of the commission of the crimes charged. Such evidence may instead relate to conditions existing both before and after the crime as held in Phillips v. United States, 311 F.2d 204 (10th Cir. [1962]). 364 F.2d at 574-75 (emphasis added). Expert testimony as to the defendant’s mental condition at the exact time of the offense, while desirable from the defendant’s standpoint, is not" }, { "docid": "12262171", "title": "", "text": "practice was recognized in England nearly two hundred years ago, see Hadfield’s Case, 27 How.St. Tr. 1282, 1355 (1800), and adopted by the District of Columbia Circuit when that Circuit was the only federal jurisdiction in which commitment was an automatic consequence of a verdict of not guilty by reason of insanity (“NGI verdict”), see Lyles v. United States, 254 F.2d 725, 728-29 (D.C.Cir.1957) (in banc), cert, denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958). The view that a jury should be informed of the consequences of an NGI verdict, at least where commitment of the defendant is mandatory, has been endorsed not only by the D.C. Circuit, but also by a panel of the Eighth Circuit, most state courts that have considered the question, and the Criminal Justice Mental Health Standards of the American Bar Association. Prior to 1984, federal law did not recognize an NGI verdict, and the disposition of those defendants found not guilty after the successful presentation of an insanity defense depended on the vagaries of state civil commitment procedures. See United States v. Neavill, 868 F.2d 1000, 1002 (8th Cir.), vacated upon grant of rehearing in banc, 877 F.2d 1394 (8th Cir.), appeal dismissed at defendant’s request, 886 F.2d 220 (8th Cir.1989) (in banc). Upon that state of the law, federal courts outside the District of Columbia followed the traditional practice of disapproving instructions to the jury concerning the disposition of a defendant found not guilty after a successful insanity defense. See, e.g., United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir.1975); Pope v. United States, 372 F.2d 710, 731 (8th Cir.1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Pope v. United States, 298 F.2d 507, 508-10 (5th Cir.1962). That approach recognized the diversion of the jurors’ attention that might occur if they were instructed concerning the complexities and uncertain consequences of state civil commitment law. It also benefited the defendant by insulating the jurors from the knowledge that a not guilty verdict after a successful insanity defense might well result in a defendant’s" }, { "docid": "23522642", "title": "", "text": "minutes after the offense but that they could not state with medical certainty any conclusion as to Hartfield’s mental condition at the time of the offense. Since Hartfield offered no testimony from Dr. Coburn, the one psychiatrist appointed in his behalf, the district judge held that the proffered evidence was immaterial since it was unconnected with any expert testimony as to Hartfield’s insanity at the precise time the alleged offense occurred. When an. accused offers some evidence to raise the issue of insanity, his sanity at the time of the offense becomes an element of the crime which, like all other elements of the crime, must be proved by the Government beyond a reasonable doubt. Doyle v. United States, 366 F.2d 394 (9th Cir. 1966). Only slight evidence is sufficient to raise the issue as to sanity for submission to the jury. Hall v. United States, 295 F.2d 26, 28 (4th Cir. 1961) quoted with approval in our case of Doyle v. United States, supra). “[W]hen insanity is in issue, ‘any and all conduct of the person is admissible in evidence.’” United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 976-77 (1972) (en banc) (quoting A. Goldstein, The Insanity Defense 54 (1967), which cites to “1 Wigmore Evidence § 228 (1940) and numer ous cases”). “Any evidence of aberrant conduct or action, whether before or after the act charged, is accordingly admissible under the plea,” United States v. James Edwin Smith, 507 F.2d 710 (4th Cir. 1974) (emphasis added), and the trial judge should be free in his admission of all possibly relevant evidence. Pope v. United States, 372 F.2d 710, 736 (8th Cir. 1967) (en banc), remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). We believe that Hartfield’s offer of proof of his mental symptomology and subsequent hospitalization was abundantly sufficient to raise the issue of his sanity so as to bring this case within the rule requiring the admission of such evidence. See also Gordon v. United States, 438 F.2d 858, 883—86 (5th Cir. 1971), cert. denied, 404 U.S. 828, 92" }, { "docid": "22076906", "title": "", "text": "the M’Naghten Rules in order to determine the sanity or insanity, the mental health or lack of it, of the defendant * * Id. at 760-767. The court also noted, “Our institutions contain many patients who are insane or mentally ill or mentally diseased and who know the difference between right and wrong. * * * The test, therefore, of knowledge of right and wrong is almost meaningless.” Id. at 765. See generally J. Biggs, The Guilty Mind: Psychiatry and the Law of Homicide (1955). . See Second Circuit Annual Judicial Conference, Insanity as a Defense, 37 F.R.D. 365, 396-397 (1964). . United States v. Freeman, 357 F,2d 606 (2d Cir. 1966) ; United States v. Current 290 F.2d 751 (3d Cir. 1961) ; United States v. Chandler, 393 F.2d 920 (4th Cir. 1968) (en banc) ; Blake v. United States, 407 F.2d 908 (5th Cir. 1969) (en banc) ; United States v. Smith, 404 F.2d 720 (6th Cir. 1968) ; United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967) (en banc) ; Pope v. United States, 372 F.2d 710 (8th Cir. 1967) (en banc) (M’Naghten permissible if other criteria satisfied), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968) ; Wion v. United States, 325 F.2d 420 (10th Cir.) (en banc), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309 (1964). We read from Freeman, supra, 357 F.2d at 613-614: “Despite the government’s arguments to the contrary, however, we do not believe that the Supreme Court has placed its stamp of approval on M’Naghten, and we find the cases cited for this proposition to be readily and clearly distinguishable. Thus, Davis v. United States (I), 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and Davis v. United States (II), 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750 (1897), do not represent a square holding as to the sufficiency of M’Naghten. The former was concerned with the issue of burden of proof — rather than the applicable standard — while the latter primarily involved a claim that the trial" }, { "docid": "21922926", "title": "", "text": "of a defendant upon a satisfactory showing that the defendant is financially unable to pay tlie fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same nianner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.” . The record before us includes a stipulation agreed upon by the government and defense counsel at the conclusion 'of the trial and before the court in chambers that had Dr. Alderete been present he would have testified that he had examined appellant in 1967 and had found him psychotic and commitable to a state institution. In light of our disposition of the case, we need not consider the possible relevancy of this stipulation. . See United States v. Harper, 450 F.2d 1032, 1035-1036 (5th Cir. 1971); Edmonds v. United States, 106 U.S.App.D.C. 373, 273 F.2d 108, 114 (1959) (en banc), cert. denied, 362 U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012 (1960). Cf. Ashton v. United States, 116 U.S.App.D.C. 367, 324 F.2d 399 (1963). . See United States v. Baird, 414 F.2d 700, 710 (2d Cir. 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970); United States v. Driscoll, 399 F.2d 135, 139 (2d Cir. 1968); United States v. Albright, 388 F.2d 719, 722-724, (4th Cir. 1964); Alexander v. United States, 380 F.2d 33, 39 (8th Cir. 1967); Pope v. United States, 372 F.2d 710, 721 (8th Cir. 1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Winn v. United States, 106 U.S.App.D.C. 133, 270 F.2d 326 (1959), cert. denied, 365 U.S. 848, 81 S.Ct. 810, 5 L.Ed.2d 812 (1961). . See Winn v. United States, 106 U.S. App.D.C. 133, 270 F.2d 326 (1959), cert. denied, 365 U.S. 848, 81 S.Ct. 810, 5 L.Ed. 2d 812 (1961). Cf. United States v. Dris-coll, 399" }, { "docid": "355613", "title": "", "text": "Lawson, 653 F.2d 299, 303 n. 12 (7th Cir. 1981); United States v. Handy, 454 F.2d 885 (9th Cir.1971), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Weiser, 428 F.2d 932 (2d Cir.1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 (1971); United States v. Baird, 414 F.2d 700 (2d Cir.1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970); United States v. Albright, 388 F.2d 719 (4th Cir.1968); Alexander v. United States, 380 F.2d 33 (8th Cir.1967); Pope v. United States, 372 F.2d 710 (8th Cir.1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971); accord, United States v. Reason, 549 F.2d 309 (4th Cir.1977). The only district court opinion in this circuit to address the Fifth Amendment question ruled similarly. Battle v. Cameron, 260 F.Supp. 804 (D.D.C.1966). Various justifications for denying the claim have been advanced by these courts. The Eighth Circuit, in a case remarkably similar to the one before us, Pope v. United States, supra, was perhaps the first federal circuit to reach the issue. Then Circuit Judge Blackmun, writing for the en banc court, relied at least alternatively upon the theory that the defendant had “waived” the Fifth Amendment protection by voluntarily making psychiatric evaluation an issue in the case. 372 F.2d at 720. The Ninth Circuit, in United States v. Handy, supra, likened compelled psychiatric examination to “compelling blood tests, handwriting exemplars, ‘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.’ ” 454 F.2d at 889 (footnote omitted), quoting from Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). Thus, it reasoned, the psychiatric interview compelled neither “communications” nor “testimony,” but “real or physical” evidence, and for that reason was not entitled to Fifth Amendment protection. See also United States v. Cohen, supra, 530 F.2d" }, { "docid": "23623330", "title": "", "text": "to guilt or innocence. 1 Devitt & Black-mar, supra note 20, at § 17.08; 2 Wright, supra note 10, at 365-66. In adopting the instruction on the effect of an NGI verdict, the D.C. Circuit recognized that it was, because of special circumstances, finding inapplicable the “doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation.” Lyles v. United States, supra, 254 F.2d at 728. Yet a close reading of the cases from other circuits reveals that many courts have explicitly based their approval of not instructing on the consequences of an NGI verdict on the applicability of this principle as well as on the absence •of any statutory scheme for disposing of defendants acquitted by reason of insanity. E. g., United States v. Borum, 10 Cir. 1972, 464 F.2d 896, 901; White v. United States, 5 Cir. 1967, 387 F.2d 367; Pope v. United States, 8 Cir. 1967, 372 F.2d 710, 731, vacated, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). Writing in Pope v. United States, 5 Cir. 1962, 298 F.2d 507, 508, cert. denied, 1965, 381 U.S. 941, 85 S.Ct. 1776, 14 L. Ed.2d 704, Judge Gewin articulated the reasoning behind this result: The primary question raised here relates in large measure to the province of the court and the duty and function of a jury in a criminal case where the statute imposes the duty upon the court to determine the sentence to be given. Generally speaking, jurors decide the facts in accordance with the rules of law as stated in the instructions of the court. Unless otherwise provided by statute, it is the duty of the court to impose sentence, or make such other disposition of the case as required by law, after the facts have been decided by the jury. To inform the jury that the court may impose minumum or maximum sentence, will or will not grant probation, when a defendant will be eligible for a parole, or" }, { "docid": "23162096", "title": "", "text": "judicial authority, likewise, has not fqund § 211 applicable to federal courts outside the District of Columbia. In Sauer v. United States, 241 F.2d 640, 650-652 (9th Cir. 1957), cert. denied, 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539, the Ninth Circuit, in determining the proper standard for insanity, noted: “The choice today in this jurisdiction is not between confinement and commitment, but rather between confinement and freedom. . . [I]f the jury acquitted appellant on the ground of insanity, there is no provision in the United States Code which would authorize the Government to have appellant committed. That a regrettable void exists in the law today in this respect is readily apparent.” The court in Sauer specifically noted that 24 U.S.C. § 211 was inapplicable: “[A] careful reading of [§ 211] reveals its inapplicability to such situations, for it pertains solely to persons found to be insane, a finding which . cannot be made within existing federal criminal procedure. Moreover . . . the section has been administratively construed as applicable only to persons charged with crime before District of Columbia courts.” 241 F.2d at 651-652 n. 32. Instructions similar to that sought by the defendant in the present case have been denied by the Fifth, Eighth, and Tenth Circuits in Pope v. United States, 298 F.2d 507, 508-509 (5th Cir. 1962), cert. denied, 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965); White v. United States, 387 F.2d 367 (5th Cir. 1967); Pope v. United States, 372 F.2d 710, 731-732 (8th Cir. 1967), vacated for re-sentencing, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971); United States v. Borum, 464 F.2d 896, 900-901 (10th Cir. (1972). See also United States v. McCracken, 488 F.2d 406, 416-417 (5th Cir. 1974); United States v. Shapiro, 383 F.2d 680, 686-687 (7th Cir. 1967); United States v. Freeman, 357 F.2d 606, 625-626 (2d Cir. 1966). The only judicial authority suggesting that § 211 might be applicable outside the District of Columbia is found in dicta in Pollard" }, { "docid": "12262172", "title": "", "text": "commitment procedures. See United States v. Neavill, 868 F.2d 1000, 1002 (8th Cir.), vacated upon grant of rehearing in banc, 877 F.2d 1394 (8th Cir.), appeal dismissed at defendant’s request, 886 F.2d 220 (8th Cir.1989) (in banc). Upon that state of the law, federal courts outside the District of Columbia followed the traditional practice of disapproving instructions to the jury concerning the disposition of a defendant found not guilty after a successful insanity defense. See, e.g., United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir.1975); Pope v. United States, 372 F.2d 710, 731 (8th Cir.1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Pope v. United States, 298 F.2d 507, 508-10 (5th Cir.1962). That approach recognized the diversion of the jurors’ attention that might occur if they were instructed concerning the complexities and uncertain consequences of state civil commitment law. It also benefited the defendant by insulating the jurors from the knowledge that a not guilty verdict after a successful insanity defense might well result in a defendant’s being turned loose, see United States v. McCracken, 488 F.2d 406, 421-25 (5th Cir.1974), a consequence that would risk inclining the jury to convict even though entertaining a reasonable doubt about the defendant’s sanity. Federal law concerning the insanity defense was significantly changed in 1984, however, requiring fresh consideration of the appropriateness of informing the jury concerning the consequences of a successful insanity defense. The Insanity Defense Reform Act of 1984, Pub.L.No. 98-473, tit. II, ch. IV, 98 Stat. 2057 (1984), codified at 18 U.S.C. §§ 4241-4247 (1988), made several critical changes. In the first place, a verdict of not guilty only by reason of insanity was authorized. 18 U.S.C. § 4242(b)(3). Second, the insanity defense was narrowed in scope and established as an affirmative defense that the defendant must establish by clear and convincing evidence. Id. § 4243(d). Third, and especially pertinent to the issue on this appeal, a mandatory civil commitment procedure was established for every defendant found not guilty by reason of insanity. Id. § 4243. Since these fundamental changes in the" }, { "docid": "23623353", "title": "", "text": "has added such a provision, see Tenn.Code § 33-701 (a) (1972 Supp.). See generally Friginski, Commitment After Acquittal On Grounds of Insanity, 22 Md.L.Rev. 193 (1962); Comment, Disposition of the Insane Defendant After “Acquittal” — The Long Road From Commitment to Release, 59 J.Crim.Law 583 (1968); Note, Releasing Criminal Defendants Acquitted and Committed Because of Insanity: The Need for Balanced Administration, 68 Yale L.J. 293 (1958). . See Lynch v. Overholser, 1962, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211; United States v. Brawner, 1972, 153 U.S.App.D.C. 1, 471 F.2d 969, 997; Bolton v. Harris, 1968, 130 U.S.App.D.C. 1, 395 F.2d 642. . 24 U.S.C. § 211 (1970) provides that “[i]f any person, charged with crime, be found, in the court before which he is so charged, to be an insane person, such court shall certify the same to the Secretary of Health, Education and Welfare, who may order such person to be confined in Saint Elizabeths Hospital . . . .” Though the question has never been presented squarely in this Court, Judge Rives, dissenting in Howard v. United States, 5 Cir. 1956, 229 F.2d 602, 608, suggested that this provision might be available to federal district courts outside the District of Columbia. The subsequent decision by the en banc court vacating the panel decision and reversing the conviction neither turned on nor mentioned this point, Howard v. United States, 5 Cir. 1956, 232 F.2d 274. Judge Gewin has interpreted the en banc court’s silence as indicating doubts, at least in this circuit, that § 211 applies outside the District of Columbia. Pope v. United States, 5 Cir. 1962, 298 F.2d 507, 508. Although opinion elsewhere is split on the question, see authorities collected at Pope v. United States, 8 Cir. 1967, 372 F.2d 710, 731-732, vacated, 1968, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317, on remand, 8 Cir. 1970, 434 F.2d 325, cert. denied, 1971, 401 U. S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 ; 2 Wright, supra note 10, at 367 n. 35, we share those doubts. We note also that the en" }, { "docid": "22076903", "title": "", "text": "as United States v. Currens, 3 Cir., 1961, 290 F.2d 751, and request that on the new trial, if it determines the defendant could properly distinguish between right and wrong, it nevertheless make further findings so that we may, if need be, give consideration to this matter.” Id. at 52-53. Our research of reported decisions discloses no subsequent opinions on insanity tests by any federal court in the First Circuit. In this connection, the Eighth Circuit permits, but does not require, application of tests based on variations of the M’Naghten rules. The Eighth Circuit does require, however, admission of all evidence relevant to the defendant’s mental capacity and a jury charge recognizing the possibility of varying gradations and types of incapacity. See Pope v. United States, 372 F.2d 710, 735-736, (8th Cir. 1967) (en lane), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed. 1317 (1968). See note 16, infra. . Model Penal Code § 4.01 (Final Draft, 1962). We have reprinted this section in our text at page 11, infra. . Similarly, in Maxwell v. United States, 368 F.2d 735 (9th Cir. 1966), there was no evidence to raise the insanity issue. Accordingly, a challenge therein to the M’Naghten rules was inappropriate, and the court expressed no opinion on the merits of any other test of criminal responsibility. See also Kilpatrick v. United States, 372 F.2d 93 (9th Cir. 1967) (per curiam). Three-judge panels of this court have followed Sauer, note 9 infra, as required in the absence of en banc reconsideration of the holding in that case. See, e. g., Johnson v. United States, 406 F.2d 1111 (9th Cir. 1969) ; Oliver v. United States, 396 F.2d 434 (9th Cir. 1968) ; Smith v. United States, 342 F.2d 725 (9th Cir. 1965). . The late Mr. Justice Frankfurter, as a witness before the British Royal Commission on Capital Punishment, stated: “I do not see why the rules of law should be arrested at the state of psychological knowledge of the time when they were formulated. * * * If you find rules that are, broadly" }, { "docid": "23623328", "title": "", "text": "White v. United States, 5 Cir. 1967, 387 F.2d 367; Pope v. United States, 8 Cir. 1967, 372 F.2d 710, 731, vacated, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Powers v. United States, 10 Cir. 1962, 305 F.2d 157, 158, cert. denied, 1963, 375 U.S. 858, 84 S.Ct. 123, 11 L.Ed.2d 85; Pope v. United States, 5 Cir. 1962, 298 F.2d 507, 508-509, cert. denied, 1965, 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704. See I Devitt & Blackmar, supra note 20. The question in the case at bar is whether it was error for the trial judge to instruct the jury as to the correct consequences under the law of a verdict of acquittal by reason of insanity. It might be argued that the reasoning of the D.C. Circuit is applicable by analogy to other courts without a comparable statutory scheme. Recognizing the likelihood that the jury will consider post-trial disposition of the defendant in arriving at its verdict, the D.C. Circuit simply decided to instruct on the consequences of an NGI verdict to insulate as much as possible the jury’s determination of guilt or innocence from erroneous factual assumptions. Jurors in other federal courts are no less likely to consider post-trial disposition of the defendant, and no less in need of instructions on the consequences of an acquittal based on insanity in order to avoid incorrect factual assumptions in arriving at a determination of guilt or innocence. Only in the latter case, they must be told, as the trial judge below quite correctly said, that in the event of an acquittal based on insanity, the defendant will be “turned a loose” and “released from custody” because there are no federal statutory provisions for doing other than “liberating him.” We do not believe that the conclusion follows from the premise. Except where a special statutory provision mandates a jury role in assessment or determination of penalty, the punishment provided by law for offenses charged is a matter exclusively for the court and should not be considered by the jury in arriving at a verdict as" }, { "docid": "22435951", "title": "", "text": "81 (6 Cir. 1960). We, however, find no error and see no reason why we should depart from the long-established principle that, in the absence of some specific statutory provision, a defendant’s disposition is not a matter for the jury’s concern. Lyles had to do with a District of Columbia statute and a special plea of not guilty by reason of insanity. And Pollard concerned an order, not a jury instruction. In addition, the Sixth Circuit’s intimation, in Pollard and in its earlier opinion in the same case, supra, p. 464 of 282 F.2d, that 24 U.S.C. § 211, with its provision for certification to the Secretary and possible confinement in Saint Elizabeths Hospital, is available to federal defendants outside the District of Columbia, is not shared in other quarters. See Sauer v. United States, 241 F. 2d 640, 651 (9 Cir. 1957), cert. denied 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539; United States v. Currens, 290 F.2d 751, 775-776 and 777 (3 Cir. 1961); United States v. Freeman, 357 F.2d 606, 625 (2 Cir. 1966); Pope v. United States, 298 F.2d 507, 509 (5 Cir. 1962); Powers v. United States, 305 F.2d 157, 158 (10 Cir. 1962); Lynch v. Overholser, 369 U.S- 705, 729-730, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962) (dissenting opinion of Mr. Justice Clark); United States v. Roe, 213 F.Supp. 444, 455-456 (W.D.Mo. 1963), and cases cited; 17 Op. Att’y Gen’l 211 (1881); S. 3689 and S. 3573, introduced in the 89th Congress. We, too, hope that this gap, if it exists, in the federal system may soon be adequately remedied. We should note that in its closing argument to the jury the defense made what appears to be at least a collateral reference to Pope’s possible custody in the event of acquittal: ‘■T wonder if you might in your deliberations feel or think about some concern about his custody if you find him not guilty. * * * I think you can assume that if you do your duty as jurors * * * others will do their duty in connection with Duane.”" }, { "docid": "23623327", "title": "", "text": "assumption might well lead them to convict the defendant despite strong evidence of insanity at the time of the offense — thus the need for instructions imparting “a sufficient intimation of continued incarceration to dull the danger of the jury’s having a vision of appellant walking out of the courtroom a free man upon its return of an insanity verdict.” United States v. Grimes, 1969, 137 U.S.App.D.C. 184, 421 F.2d 1119, 1125, cert. denied, 1970, 398 U.S. 932, 90 S.Ct. 1831, 26 L.Ed.2d 98. Given the lack of any comparable statute applicable to other federal courts, it is obvious that the instruction on the consequences of an NGI verdict used in the D.C. Circuit would be inapposite outside the District of Columbia. Accordingly, various courts, including this one, have held that it is not error for a trial judge to refuse to give an instruction regarding hospitalization following an NGI verdict. E. g., United States v. Borum, 10 Cir. 1972, 464 F.2d 896, 900-901; Apgar v. United States, 8 Cir. 1971, 440 F.2d 733, 737; White v. United States, 5 Cir. 1967, 387 F.2d 367; Pope v. United States, 8 Cir. 1967, 372 F.2d 710, 731, vacated, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Powers v. United States, 10 Cir. 1962, 305 F.2d 157, 158, cert. denied, 1963, 375 U.S. 858, 84 S.Ct. 123, 11 L.Ed.2d 85; Pope v. United States, 5 Cir. 1962, 298 F.2d 507, 508-509, cert. denied, 1965, 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704. See I Devitt & Blackmar, supra note 20. The question in the case at bar is whether it was error for the trial judge to instruct the jury as to the correct consequences under the law of a verdict of acquittal by reason of insanity. It might be argued that the reasoning of the D.C. Circuit is applicable by analogy to other courts without a comparable statutory scheme. Recognizing the likelihood that the jury will consider post-trial disposition of the defendant in arriving at its verdict, the D.C. Circuit simply decided to instruct on the consequences of" }, { "docid": "10702553", "title": "", "text": "of Douglas v. United States, 99 U.S.App.D.C. 232, 239 F.2d 52 (1956), and United States v. Westerhausen, 283 F.2d 844 (7th Cir. 1960) compel reversal of the instant case. The courts there determined that on the specific facts of those cases the juries were not warranted in failing to entertain reasonable doubt as to the sanity of the accused. We conclude that the evidence in this case, viewed as a whole, afforded the jury with the choice of finding the defendant to be sane beyond a reasonable doubt and that, therefore, the submission of the insanity issue to the jury was proper. II. Defendant filed pro se a document entitled “Supplemental Brief of Defendant Per [sic] Se”, which in reality amounts to a separate appeal alleging six errors to the District Court. Points I and II, while not frivolous on their face, do not appear to have been raised at trial nor otherwise preserved for proper consideration on appeal. Points III and IV are frivolous and merit no consideration. Point V is a repetition of the single point argued by counsel and, accordingly, has been considered. Point VI assigns as error the District Court’s refusal to instruct the jury that upon a verdict of not guilty, the defendant might be confined to a hospital, together with a remark in closing argument by the Government implying that upon a verdict of not guilty the defendant would be released to return to past behavior. No objection was entered to the government’s argument and any error asserted therein is not preserved. An exception was properly taken to the District Court’s refusal to grant an instruction requested by defendant and approved in Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, 728 (1957), cert. denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067. We have previously stated that refusal to grant this instruction is not error. Pope v. United States, 372 F.2d 710, 731 (8 Cir. 1967), vacated 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Pope v. United States, 434 F.2d 325 (8 Cir. 1970). Affirmed. . Apgar’s co-defendants" }, { "docid": "23162097", "title": "", "text": "persons charged with crime before District of Columbia courts.” 241 F.2d at 651-652 n. 32. Instructions similar to that sought by the defendant in the present case have been denied by the Fifth, Eighth, and Tenth Circuits in Pope v. United States, 298 F.2d 507, 508-509 (5th Cir. 1962), cert. denied, 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965); White v. United States, 387 F.2d 367 (5th Cir. 1967); Pope v. United States, 372 F.2d 710, 731-732 (8th Cir. 1967), vacated for re-sentencing, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971); United States v. Borum, 464 F.2d 896, 900-901 (10th Cir. (1972). See also United States v. McCracken, 488 F.2d 406, 416-417 (5th Cir. 1974); United States v. Shapiro, 383 F.2d 680, 686-687 (7th Cir. 1967); United States v. Freeman, 357 F.2d 606, 625-626 (2d Cir. 1966). The only judicial authority suggesting that § 211 might be applicable outside the District of Columbia is found in dicta in Pollard v. United States, 282 F.2d 450, 464 (6th Cir. 1960). No case has been found in which the denial of an instruction like that sought in the present case has been held to be reversible error. Members of Congress apparently have also assumed that 24 U.S.C. § 211 does not provide authority for federal commitment where there is a verdict of not guilty by reason of insanity. In recent years, a number of bills differing in scope and procedure have been introduced to provide for such a procedure. S.979, 91st Cong., 1st Sess. (1969); S. 1007, S.2740, 90th Cong., 1st Sess. (1967); S.3689, S.3753, 89th Cong., 2d Sess. (1966). There has been questioning of the constitutionality of such a commitment by a federal court. Finally, it should be noted that commentators have disagreed as to the merits of commitment after acquittal by reason of insanity. Given this background, we are of the opinion that any change in the generally accepted interpretation of § 211 should come from Congress, which thus far has not chosen to" }, { "docid": "355612", "title": "", "text": "have no firm and directly relevant authority in our own opinions or in the holdings of the Supreme Court, virtually all other circuits have addressed claims materially indistinguishable from that raised by appellant. They have uniformly held that where the defendant has interposed the defense of insanity, the Fifth Amendment’s privilege against self-incrimination is not violated by a court-ordered psychiatric examination (whether by a psychiatrist appointed by the court or one selected by the Government); and that where the defendant introduces psychiatric testimony at trial, the Fifth Amendment does not prevent testimony by the psychiatrist who conducted the court-ordered examination on the issue of sanity. See, e.g., United States v. Madrid, 673 F.2d 1114 (10th Cir.), cert. denied, 459 U.S. 843, 103 S.Ct. 96, 74 L.Ed.2d 88 (1982); United States v. Reifsteck, 535 F.2d 1030 (8th Cir.1976); United States v. Cohen, 530 F.2d 43 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); United States v. Bohle, 445 F.2d 54 (7th Cir.1971), overruled on other grounds in United States v. Lawson, 653 F.2d 299, 303 n. 12 (7th Cir. 1981); United States v. Handy, 454 F.2d 885 (9th Cir.1971), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Weiser, 428 F.2d 932 (2d Cir.1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 (1971); United States v. Baird, 414 F.2d 700 (2d Cir.1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970); United States v. Albright, 388 F.2d 719 (4th Cir.1968); Alexander v. United States, 380 F.2d 33 (8th Cir.1967); Pope v. United States, 372 F.2d 710 (8th Cir.1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971); accord, United States v. Reason, 549 F.2d 309 (4th Cir.1977). The only district court opinion in this circuit to address the Fifth Amendment question ruled similarly. Battle v. Cameron, 260 F.Supp. 804 (D.D.C.1966). Various justifications for denying the claim have been advanced by these courts." }, { "docid": "23623354", "title": "", "text": "Rives, dissenting in Howard v. United States, 5 Cir. 1956, 229 F.2d 602, 608, suggested that this provision might be available to federal district courts outside the District of Columbia. The subsequent decision by the en banc court vacating the panel decision and reversing the conviction neither turned on nor mentioned this point, Howard v. United States, 5 Cir. 1956, 232 F.2d 274. Judge Gewin has interpreted the en banc court’s silence as indicating doubts, at least in this circuit, that § 211 applies outside the District of Columbia. Pope v. United States, 5 Cir. 1962, 298 F.2d 507, 508. Although opinion elsewhere is split on the question, see authorities collected at Pope v. United States, 8 Cir. 1967, 372 F.2d 710, 731-732, vacated, 1968, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317, on remand, 8 Cir. 1970, 434 F.2d 325, cert. denied, 1971, 401 U. S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 ; 2 Wright, supra note 10, at 367 n. 35, we share those doubts. We note also that the en banc court in Blake v. United States, 5 Cir. 1969, 407 F.2d 908, 915 n. 2, specifically referred to the absence of any federal statutory provision for commitment of defendants found not guilty because of insanity. . The passage of the provision in the D.C. Code resulted from the D.C. Circuit’s adoption of the broader Durham rule for escape from criminal responsibility. United States v. Brawner, 1972, 153 U.S.App.D.C. 1, 471 F.2d 969, 996; Comment, Commitment Following Acquittal By Reason of Insanity and the Equal Protection of the Laws, 116 U.Pa.L. Rev. 924, 927 n. 21 (1968). It has been suggested that the absence of any comparable federal statutory provision in fact impeded judicial acceptance of broadened definitions of insanity, see Tydings, A Federal Verdict of Not Guilty By Reason of Insanity and a Subsequent Commitment Procedure, 27 Md.L. Rev. 131, 138. But see Wade v. United States, 9 Cir. 1970, 426 F.2d 64, 73; Blake v. United States, 5 Cir. 1969, 407 F.2d 908, 915 n. 2. . Commentators have suggested a link between" }, { "docid": "23191021", "title": "", "text": "of not guilty by reason of insanity. See United States v. Portis, 542 F.2d 414, 420-21 (7th Cir.1976); United States v. Alvarez, 519 F.2d 1036, 1047-48 (3d Cir.1975); McCracken, 488 F.2d at 425; United States v. Borum, 464 F.2d 896, 900-01 (10th Cir.1972); Pope v. United States, 372 F.2d 710, 731 (8th Cir.1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); United States v. Evalt, 359 F.2d 534, 546 (9th Cir.1966). The District of Columbia Circuit, however, requires an instruction on the consequences of the insanity verdict, unless the defendant requests otherwise, because the statutory code of the District of Columbia since 1955 has provided for mandatory commitment proceedings for defendants acquitted by reason of insanity. See Lyles v. United States, 254 F.2d 725, 728 (D.C.Cir.1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958). The Insanity Defense Reform Act of 1984 created a comprehensive evaluation and commitment procedure for federal court defendants outside of the District of Columbia who are found not guilty by reason of insanity. See 18 U.S.C. § 4243. The Senate Committee on the Judiciary endorsed the District of Columbia practice of allowing an instruction on the effect of the insanity verdict. S.Rep. No. 98-225, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3422. The Act itself does not require a jury instruction of any sort. No other circuit has considered this question since the enactment of the Reform Act. But see United States v. Neavill, 868 F.2d 1000 (8th Cir.), vacated, reh’g en banc granted, 877 F.2d 1394 (8th Cir.), appeal dismissed, 886 F.2d 220 (8th Cir.1989) (dismissed upon request of defendant; original opinion held that defendant was entitled to the instruction because of the Act). The majority refers first to the sanctity of separation between judge and jury func tions. The argument, however, that an instruction on the consequences of a verdict of not guilty by reason of insanity violates that sanctity and impedes the function of the jury, is flawed. A jury’s performance of its function is distorted when jurors" }, { "docid": "23020818", "title": "", "text": "public safety and his welfare require.” (App. for John Martinez, at 5a). Requested charge #11 read: “A verdict of not guilty by reason of insanity means that the accused will be confined in a hospital for the mentally ill until the superintendent has certified, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or to others, in which event and at which time the court shall order his release either unconditionally or under such conditions as the court may see fit.” (App. for John Martinez, at 6a). . See United States v. McCracken, 488 F.2d 406, 422 (5th Cir. 1974); United States v. Borum, 464 F.2d 896, 900-01 (10th Cir. 1972); Apgar v. United States, 440 F.2d 733, 737 (8th Cir. 1971); White v. United States, 387 F.2d 367 (5th Cir. 1967); Pope v. United States, 372 F.2d 710, 731-32 (8th Cir. 1967), vacated on other grounds 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); Powers v. United States, 305 F.2d 157, 158 (10th Cir. 1962) cert. denied, 375 U.S. 858, 84 S.Ct. 123, 11 L.Ed.2d 85 (1963); Pope v. United States, 298 F.2d 507 (5th Cir. 1962), cert. denied, 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965); see also United States v. Greene, 497 F.2d 1068, 1975-76 (7th Cir. 1974). . Settle & Oppegard, The Pre-Trial Examination of Federal Defendants, reprinted in Oliver, Application of Psychiatry to Study, Observation, and Treatment of the Federal Offender, 35 F.R.D. 459, 475 (1964) (Appendix C): “[I]t is essential to understand and keep in mind that no agency of the Federal Government has the authority to confine, nor does any Federal court (District of Columbia excepted) have the power to commit mentally ill persons involuntarily for care and treatment. The responsibility for the involuntary detention of the insane for treatment and the protection of society rests solely with the states. ...” . See United States v. Currens, 290 F.2d 751, 775-76 (3d Cir. 1961): “Courts of appeals have differed in their views as to available" } ]

[ { "docid": "22032303", "title": "", "text": "finality. Nevertheless, Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988), applied Stanton’s dicta and held that a BAP decision reversing a final order of the bankruptcy court and remanding for reconsideration of the proper test to determine “substantial abuse” under 11 U.S.C. § 707(b) was appealable under section 158(d). Kelly emphasized that in addition to the considerations in Stanton, the policies of judicial efficiency and finality were best served by resolving the issues presented before remand. Id. Subsequent to Kelly, the Supreme Court decided Germain. Under the direction of Germain, Vylene refined Stanton and Kelly and set forth the considerations we should balance in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under section 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. Vylene, 968 F.2d at 895-96. We applied Vylene in Bonner Mall and Dominguez v. Miller (In re Dominguez), 51 F.3d 1502 (9th Cir.1995) {Dominguez). In Bonner Mall, we recognized that Vylene set forth the proper approach for determining whether we could exercise jurisdiction. For additional guidance, however, we referred to the Stanton dicta and considered whether exercising our jurisdiction would obviate the need for further factfinding and assist the bankruptcy court in reaching its disposition on remand. Bonner Mall, 2 F.3d at 904. Determining that both of these considerations supported our jurisdiction, we then summarily asserted that under the particular circumstances presented in Bonner Mall, the “policy of judicial economy ... strongly out-weighted] the need to avoid piecemeal appeals.” Id. at 905. Without further analysis of the governing considerations set forth in Vylene, we assumed jurisdiction. Dominguez again recognized the four considerations mandated in Vylene. Dominguez, 51 F.3d at 1506. As in Bonner Mall, Dominguez also framed our analysis in terms of the Stanton dicta and assumed jurisdiction. Id. at 1506-07. However, by choosing to focus on the Stanton dicta, Dominguez failed to analyze explicitly any" } ]

[ { "docid": "17139980", "title": "", "text": "the bankruptcy court decision to federal district court, arguing that the trial court had wrongly placed upon him the burden of proving that he had not entered into a partnership agreement with the Hawkins. The district court agreed. It held that the bankruptcy court “erred in placing the burden of proof on the debtor” by requiring him not only to “rebut the presumption of a valid claim but ... also required [him] to prove that he had not formed the requisite intent to form a partnership.” It also noted that it had been “hampered in considering this matter by the lack of specific findings of fact” in the bankruptcy court’s oral decision. The district court remanded the action to bankruptcy court for more specific findings of fact and for further proceedings to apply the correct burden of proof. Claimants appealed. II We have jurisdiction to review final orders of a district court acting in its bankruptcy appellate capacity under either 28 U.S.C. § 158(d) or 28 U.S.C. § 1291. See Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103, 105 (9th Cir.1996). A district court renders a final order when it affirms or reverses a bankruptcy court’s final order. See Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992). However, a district court’s order is ordinarily not final “when the district court remands for further factual findings related to a central issue raised on appeal.” Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 904 (9th Cir.1993). Nevertheless, we have taken a “pragmatic approach” in determining finality in light of the “unique nature” of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings. See id. at 903-04. In such cases, we have balanced several policies in determining whether a remand order may be considered final: “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) systemic interest in preserving the bankruptcy court’s role as the finder of fact; and" }, { "docid": "13387794", "title": "", "text": "approach” stem from the “unique nature” of bankruptcy proceedings. Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 903 (9th Cir.1993), cert. dismissed, — U.S. -, 114 S.Ct. 681, 126 L.Ed.2d 648. (1994). The bankruptcy court’s dismissal of the Millers’ declaratory judgment action is final and appealable: it terminated all possibility of litigation on the merits of the Millers’ objection to discharge. E.g., Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988). The question then is whether a BAP’s order reversing the bankruptcy court’s dismissal is final and appealable under 28 U.S.C. § 158(d). The effect of the BAP’s decision is to remand to reopen proceedings in the bankruptcy court for a determination on the merits of the Millers’ claim that the debt is nondischargeable. When a lower appellate decision reverses a final order and remands, we consider the “systemic interest in preserving the bankruptcy court’s role as the finder of fact,” avoidance of piecemeal litigation, and overall enhancement of judicial efficiency. Bonner, 2 F.3d at 904; see also Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992). Although we ordinarily lack jurisdiction when the lower appellate decision remands for further factual findings related to a central issue raised on appeal, we may assert jurisdiction if the appellate “issue is legal in nature and its resolution either 1) could dispose of the case or pro ceeding and obviate the need for factfinding; or 2) would materially aid the bankruptcy court in reaching its disposition on remand.” Bonner, 2 F.3d at 904 (citing King v. Stanton (In re Stanton), 766 F.2d 1283, 1288 n. 8 (9th Cir.1985) and Farm Credit Bank v. Fowler (In re Fowler), 903 F.2d 694, 696 (9th Cir.1990)). The Bonner provision for review of legal questions that may obviate the need for further factual proceedings is applicable in this case. If we uphold the bankruptcy court’s ruling that a complaint is necessary within the time period established by Rule 4004 and reinstate its legal conclusion that the memorandum asserting" }, { "docid": "15125263", "title": "", "text": "if not in the amount sought by the IRS. Accordingly, the court remanded the case with directions to recompute Olshan’s tax liability consistent with its decision and to determine penalties and interest. The trustee now appeals. II. JURISDICTION At the threshold we must decide whether we have jurisdiction. “We have jurisdiction to review final orders of a district court acting in its bankruptcy appellate capacity under either 28 U.S.C. § 158(d) or 28 U.S.C. § 1291.” Lundell v. Anchor Constr. Specialists, Inc. (In re Lundell), 223 F.3d 1035, 1038 (9th Cir. 2000); see also Stanley v. Crossland, Crossland, Chambers, MacArthur & Lástrete (In re Lakeshore Vill. Resort, Ltd.), 81 F.3d 103, 106 (9th Cir.1996). “However, a district court’s order is ordinarily not final ‘when the district court remands for further factual findings related to a central issue raised on appeal.’ ” Lundell, 223 F.3d at 1038 (quoting Bonner Mall P’ship v. U.S. Bancorp Mortgage Co. (In re Bonner Mall P’ship), 2 F.3d 899, 904 (9th Cir.1993)). “Nevertheless, we have taken a pragmatic approach in determining finality in light of the unique nature of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings.” Id. (internal quotation marks omitted). In certain instances, we will deem such orders final. In Stanley, we drew on prior case law to identify four factors relevant in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under § 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. 81 F.3d at 106 (citing Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887, 895-96 (9th Cir.1992)). In recent cases we have employed a more liberal approach to determining finality. In North Slope Borough v. Barstow (In re Bankr. Estate of Markair, Inc.), 308 F.3d 1057, 1059-60 (9th Cir.2002), and Lundell, 223 F.3d at 1038, we applied the two-factor test set forth" }, { "docid": "21653843", "title": "", "text": "stock trading account owned by the Latmans, but which also had not been claimed as exempt. The $2,200 above and beyond the amounts allegedly in the La Jara account were subsequently paid to the trustee, and are not at issue in this appeal. . Upon finding the Trustee's evidence of the La Jara account to be admissible, the bankruptcy judge explicitly ruled in open court that he would give the Latmans ten days to alert him if they had evidence showing that they either did not own this account, or that the balances in the account were different from the amount asserted by the Trustee. . The district court had jurisdiction over the Latmans’ appeal from the bankruptcy court under 28 U.S.C. § 158(a). Under 28 U.S.C. § 158(d), we have jurisdiction over “appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section.\" Although the parties contend that we have jurisdiction over their respective appeals, we have an independent duty to examine the propriety of subject matter jurisdiction. In re Stone, 6 F.3d 581, 583 n. 1 (9th Cir.1993). We have previously considered whether to accept jurisdiction over cases where, as here, a district court partially reverses a final bankruptcy court order, and remands for further proceedings. Compare In re Lakeshore Village Resort, Ltd.., 81 F.3d 103, 105 (9th Cir.1996), with In re Bonner Mall P’ship, 2 F.3d 899, 904-05 (9th Cir.1993). Our precedent sets a balancing test to determine whether the § 158(d) finality requirement is met when a district court order partially reverses a bankruptcy court order and remands for proceedings. Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir.1997); Lakeshore Village, 81 F.3d at 106. Our test considers \"(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court's role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Lakeshore Village, 81 F.3d at 106. Here, a proper application of this test favors finality. The issues before us on appeal are legal in" }, { "docid": "22032302", "title": "", "text": "bankruptcy court is not final under either standard. Ill Stanton held that when an intermediate appellate court remands a case to the bank-ruptey court, “the appellate process likely will be much shorter if we decline jurisdiction and await ultimate review on all the combined issues.” Stanton, 766 F.2d at 1287-88 (internal quotations omitted). This conclusion follows naturally upon consideration of the policies furthered by the rule of finality, such as maintaining the proper relationship between trial and appellate courts. See id. at 1287; Sambo’s Restaurants v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811, 814-15 (9th Cir.1985). In dicta, Stanton stated that where a case is remanded for additional fact-finding and involves a central legal issue, appellate jurisdiction may obviate the need for fact-finding or materially aid the disposition of the case on remand. Stanton, 766 F.2d at 1288 n. 8. Stanton did not propose this dicta as an independent test for determining whether we have jurisdiction under section 158(d). Nor did Stanton include a consideration of the policies embodied in the rule of finality. Nevertheless, Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988), applied Stanton’s dicta and held that a BAP decision reversing a final order of the bankruptcy court and remanding for reconsideration of the proper test to determine “substantial abuse” under 11 U.S.C. § 707(b) was appealable under section 158(d). Kelly emphasized that in addition to the considerations in Stanton, the policies of judicial efficiency and finality were best served by resolving the issues presented before remand. Id. Subsequent to Kelly, the Supreme Court decided Germain. Under the direction of Germain, Vylene refined Stanton and Kelly and set forth the considerations we should balance in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under section 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. Vylene, 968 F.2d at 895-96. We applied Vylene in Bonner Mall" }, { "docid": "16625718", "title": "", "text": "claims involved adjustments to their tax returns based on their invéstmént in the Club. The other six claims involved a second tax shelter the Raihls invested in known as the Gran Esperanza Partnership (Gran Esperanza). Gran Esperanza was another pass-thru partnership that invested in a top-tier partnership. The IRS audited the tax returns of this top-tier partnership, and as a result, adjusted Gran Esperanza’s return, and eventually that of the Raihls. The bankruptcy court ruled that the tax adjustments with respect to the Club’s investments were invalid because the Raihls were not given notice of the proceedings, but the adjustments with respect to Gran Esperanza were valid, because they occurred after the IRS issued regulations setting forth the steps that indirect partners had to take to ensure that they would receive notice. The district court reversed the bankruptcy-court with respect to the Club. The Raihls filed a timely appeal. II We must first address our subject-matter jurisdiction over these appeals. The district court, sitting in an appellate capacity, had jurisdiction to review the bankruptcy court’s decisions with respect to the Camachos and the Raihls pursuant to 28 U.S.C. § 158(a). We have jurisdiction over appeals from the district court’s final judgments pursuant to 28 U.S.C. § 158(d). The district court had original jurisdiction over the Walt-halls’ case pursuant to 28 U.S.C. §§ 1340, 1345. We have jurisdiction over final orders by the district court pursuant to 28 U.S.C. § 1291. A district court order that affirms or reverses a bankruptcy court order is final. In re Stanton, 766 F.2d 1283, 1287 (9th Cir.1985) (Stanton). However, finality determi nation in the bankruptcy context has its own set of rules. We examine whether we should consider the district court’s decision final in a bankruptcy case by considering “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” In re Lakeshore Village Resort, Ltd., 81 F.3d 103, 106 (9th Cir.1996) (Lakeshore), citing In re Vylene Enterprises, Inc.," }, { "docid": "13387793", "title": "", "text": "this court is in as good a position as the [BAP] to review the decision of the bankruptcy court, this court reviews the bankruptcy court’s decision independently.” Allred v. Kennerley (In re Kennerley), 995 F.2d 145, 146 (9th Cir.1993). The bankruptcy court’s conclusions of law are reviewed de novo, and its findings of fact are reviewed under the clearly erroneous standard. Id. DISCUSSION 1. Jurisdiction As a threshold issue, this court must consider sua sponte whether it has jurisdiction over this appeal. Under 28 U.S.C. § 158(d), jurisdiction exists when the bankruptcy court order and the lower appellate decision are both final orders. See, e.g., Ernst & Young v. Matsumoto (In re United Insurance Management, Inc.), 14 F.3d 1380, 1383 (9th Cir.1994); 28 U.S.C. § 158(d). “In bankruptcy proceedings, the rules of finality developed under the general grant of appellate jurisdiction provided in 28 U.S.C. § 1291 (1982) are given a flexible reading.” Turgeon v. Victoria Station, Inc. (In re Victoria Station, Inc.), 840 F.2d 682, 683 (9th Cir.1988). This more liberal standard and “pragmatic approach” stem from the “unique nature” of bankruptcy proceedings. Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 903 (9th Cir.1993), cert. dismissed, — U.S. -, 114 S.Ct. 681, 126 L.Ed.2d 648. (1994). The bankruptcy court’s dismissal of the Millers’ declaratory judgment action is final and appealable: it terminated all possibility of litigation on the merits of the Millers’ objection to discharge. E.g., Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988). The question then is whether a BAP’s order reversing the bankruptcy court’s dismissal is final and appealable under 28 U.S.C. § 158(d). The effect of the BAP’s decision is to remand to reopen proceedings in the bankruptcy court for a determination on the merits of the Millers’ claim that the debt is nondischargeable. When a lower appellate decision reverses a final order and remands, we consider the “systemic interest in preserving the bankruptcy court’s role as the finder of fact,” avoidance of piecemeal litigation, and overall enhancement of judicial efficiency. Bonner, 2 F.3d" }, { "docid": "8400045", "title": "", "text": "Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103 (9th Cir.1996). The factors considered are “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Id. at 106 (citing Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895-96 (9th Cir.1992), vacated on other grounds, 90 F.3d 1472 (9th Cir.1996)). While the court has not always explicitly considered these factors, determination of a remanding decision’s finality must be based on analysis of these factors. See Lakeshore Village, 81 F.3d at 107; Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir.1997) (holding district court’s decision not final because two factors in the threshold Lakeshore Village bankruptcy finality test weighed against finality). Here, the four-factor test establishes the BAP’s order as a final order: three of the four Lakeshore Village factors favor finality and the fourth is neutral. First, regardless of the court’s decision on this appeal, piecemeal litigation is not a concern because no further appeal to this court on the Padilla bankruptcy is foreseeable. In the event the court reverses the BAP, the discharge will be reversed and Padilla’s bankruptcy petition will be dismissed. Nothing in, that series of events will give rise to an appeal: the creditors stand to benefit by the dismissal and are therefore unlikely to appeal and Padilla has no foreseeable ground on which to appeal. Should the court affirm the BAP’s holding that Padilla’s petition should not have been dismissed by the bankruptcy court, there appears to be nothing that could be appealed; the bankruptcy court has already entered an Order of Discharge and closed the file without a subsequent appeal. Cf. Walthall, 131 F.3d at 1293-94 (finding a potential for piecemeal litigation because there would undoubtedly be an appeal of an additional issue if the court found for the debtors); Lakeshore Village, 81 F.3d at 107 (finding potential for piecemeal litigation because another appeal would be" }, { "docid": "22032295", "title": "", "text": "fees. The United States Trustee raised four objections to the Final Report: (1) as the Chapter 7 trustee, Ford had incurred a tax penalty of $3,300 for failure to file a partnership tax return; (2) Ford retained in a personal account $846.14 in interest derived from estate funds; (3) Ford did not pursue legal action against Lakeshore Village general partners; and (4) Ford failed to produce documents required at a Rule 2004 examination. Crossland represented Ford in his defense against the latter three objections, and Ford eventually prevailed on all but the second objection. A fee application was submitted pursuant to 11 U.S.C. § 330, which requested $10,015 in fees and $1,184.83 in expenses for Cross-land’s work in connection with defending Ford’s Final Report. The United States Trustee objected to the fee application, arguing that the fees were incurred for Ford personally, not for services benefitting the estate. The bankruptcy court agreed and denied the fee application, holding that Crossland “should not be able to seek compensation with regard to matters affecting the trustee’s conduct in the administration of the estate.” Because the bankruptcy court held that Crossland’s services could not be charged against the estate, it declined to consider whether they were “necessary” under 11 U.S.C. § 330(a). Crossland appealed to the district court, which vacated the bankruptcy court’s order and remanded because the bankruptcy court improperly applied “section 330 and its case progeny; and without citing authority for doing so, employed an unsupported test of whether attorney services bear on the trustee personally.” The United States Trustee appealed from the district court’s decision. She argues, as does Crossland, that the district court decision was final under 28 U.S.C. § 158(d). She asks us to reverse and remand with instructions to affirm the order of the bankruptcy court. II Although both parties contend that we have jurisdiction over this appeal, we have an independent duty to examine the propriety of our subject matter jurisdiction. United States v. Stone (In re Stone), 6 F.3d 581, 583 n. 1 (9th Cir.1993). In this case, the district court exercised appellate jurisdiction over" }, { "docid": "22032296", "title": "", "text": "in the administration of the estate.” Because the bankruptcy court held that Crossland’s services could not be charged against the estate, it declined to consider whether they were “necessary” under 11 U.S.C. § 330(a). Crossland appealed to the district court, which vacated the bankruptcy court’s order and remanded because the bankruptcy court improperly applied “section 330 and its case progeny; and without citing authority for doing so, employed an unsupported test of whether attorney services bear on the trustee personally.” The United States Trustee appealed from the district court’s decision. She argues, as does Crossland, that the district court decision was final under 28 U.S.C. § 158(d). She asks us to reverse and remand with instructions to affirm the order of the bankruptcy court. II Although both parties contend that we have jurisdiction over this appeal, we have an independent duty to examine the propriety of our subject matter jurisdiction. United States v. Stone (In re Stone), 6 F.3d 581, 583 n. 1 (9th Cir.1993). In this case, the district court exercised appellate jurisdiction over a decision of the bankruptcy court pursuant to 28 U.S.C. § 158(a). That provision gives district courts jurisdiction to hear appeals from “final judgments, orders, and decrees, and with leave of the court, from interlocutory orders and decrees” of the bankruptcy court. Id. The bankruptcy court’s order denying Crossland’s fee application constituted a final decision under section 158(a). Thus, the district court properly asserted jurisdiction. Section 158(d) provides that “[t]he courts of appeal shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section.” Id. § 158(d). Our jurisdiction under section 158(d) therefore requires a final decision from the district court. Where, as here, the district court acts in its bankruptcy appellate capacity, 28 U.S.C. § 1291 may also give us appellate jurisdiction to review final decisions. See Connecticut National Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (Germain); Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 891 (9th Cir.1992) (Vylene)." }, { "docid": "8400044", "title": "", "text": "The Trustee did not move to stay the BAP’s judgment. In February 1998, the bankruptcy court, having reinstated Padilla’s petition and proceeded with the bankruptcy, discharged Padilla’s debts and closed the case. The Trustee did not object to the discharge. II. JURISDICTION OVER THE APPEAL OF THE BAP’S ORDER This Court has jurisdiction over this appeal only if both the bankruptcy court’s order dismissing Padilla’s bankruptcy petition and the BAP’s order to reverse and remand are final orders. See 28 U.S.C. § 158(d); Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988). The bankruptcy court’s order dismissing Padilla’s bankruptcy petition is a final order. See id. (stating that “a dismissal of a debtor’s bankruptcy petition is final, terminating, as it does, all litigation in the case”). A bankruptcy appellate panel’s order is final if it affirms or re-verses a final bankruptcy court order. See id. However, where the panel’s order reverses and remands the matter, this Circuit has applied a four-factor- test to determine whether the order is final. See Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103 (9th Cir.1996). The factors considered are “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Id. at 106 (citing Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895-96 (9th Cir.1992), vacated on other grounds, 90 F.3d 1472 (9th Cir.1996)). While the court has not always explicitly considered these factors, determination of a remanding decision’s finality must be based on analysis of these factors. See Lakeshore Village, 81 F.3d at 107; Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir.1997) (holding district court’s decision not final because two factors in the threshold Lakeshore Village bankruptcy finality test weighed against finality). Here, the four-factor test establishes the BAP’s order as a final order: three of the four Lakeshore Village factors favor finality and the fourth is neutral. First," }, { "docid": "15342347", "title": "", "text": "Mall P’ship), 2 F.3d 899, 903 (9th Cir.1993) dismissed on other grounds, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). We have jurisdiction if both the bankruptcy court’s order and the district court’s order are final. Id.; 28 U.S.C. § 158(d). Even though the district court remanded the case to the bankruptcy court for further fact-finding, the district court order is final under the pragmatic approach to finality employed in the bankruptcy context. See Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 980 (9th Cir.2001). Given the unique nature of bankruptcy proceedings, we balance several policies in determining whether a remand order is final: (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systematic interest in preserving the bankruptcy court’s role as a finder of fact; and (4) whether delaying review would cause irreparable harm. Id. (citing Lundell v. Anchor Constr. Specialists (In re Lundell), 223 F.3d 1035, 1038 (9th Cir.2000)). We have consistently recognized that when an appeal “could dispose of the case or proceedings and obviate the need for factfinding” the competing considerations usually tip in favor of immediate review. See Scovis, 249 F.3d at 980 (recognizing two exceptions to the general finality rule); Lundell 223 F.3d at 1038 (same). Because this appeal “involves the very existence of the rule pursuant to which the bankruptcy court would be required to make factual findings on re mand,” we have jurisdiction. Bonner Mall, 2 F.3d at 904. B. Standard of Review Because this court is in as good a position as the district court to review the findings of the bankruptcy court, we independently review the bankruptcy court’s decision. Atalanta Corp. v. Allen (In re Allen), 300 F.3d 1055, 1058 (9th Cir.2002). We review conclusions of law de novo and findings of facts for clear error. Id. This dispute centers around the interpretation of Paragraph Eighteen in the deed of trust. The meaning of this contractual provision is a question of law, which we review de novo. Kassbaum v. Steppenwolf Prods. Inc., 236 F.3d 487, 490 (9th Cir.2000) cert. denied, 534 U.S. 815, 122" }, { "docid": "17139981", "title": "", "text": "MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103, 105 (9th Cir.1996). A district court renders a final order when it affirms or reverses a bankruptcy court’s final order. See Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992). However, a district court’s order is ordinarily not final “when the district court remands for further factual findings related to a central issue raised on appeal.” Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 904 (9th Cir.1993). Nevertheless, we have taken a “pragmatic approach” in determining finality in light of the “unique nature” of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings. See id. at 903-04. In such cases, we have balanced several policies in determining whether a remand order may be considered final: “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Walthall v. U.S., 131 F.3d 1289, 1293 (9th Cir.1997) (internal quotation marks and citations omitted). We have oft considered in the context of the Vylene analysis two narrow exceptions to the finality rule as set forth in Bonner Mall. See, e.g., Walthall, 131 F.3d at 1293; Foothill Capital Corp. v. Clare’s Food Market (In re Coupon Clearing Service, Inc.), 113 F.3d 1091, 1098 (9th Cir.1997). In Bonner Mall, we held that we could assert jurisdiction even though a district court has remanded a matter for factual findings on a central issue if that issue is legal in nature and its resolution either (1) could dispose of the case or proceedings and obviate the need for fact-finding; or (2) would materially aid the bankruptcy court in reaching its disposition on remand. See In re Bonner Mall, 2 F.3d at 904 (citing King v. Stanton (In re Stanton), 766 F.2d 1283, 1288 n. 8 (9th Cir.1985)); see also Dominguez v. Miller (In re Dominguez), 51 F.3d 1502," }, { "docid": "21653844", "title": "", "text": "jurisdiction. In re Stone, 6 F.3d 581, 583 n. 1 (9th Cir.1993). We have previously considered whether to accept jurisdiction over cases where, as here, a district court partially reverses a final bankruptcy court order, and remands for further proceedings. Compare In re Lakeshore Village Resort, Ltd.., 81 F.3d 103, 105 (9th Cir.1996), with In re Bonner Mall P’ship, 2 F.3d 899, 904-05 (9th Cir.1993). Our precedent sets a balancing test to determine whether the § 158(d) finality requirement is met when a district court order partially reverses a bankruptcy court order and remands for proceedings. Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir.1997); Lakeshore Village, 81 F.3d at 106. Our test considers \"(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court's role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Lakeshore Village, 81 F.3d at 106. Here, a proper application of this test favors finality. The issues before us on appeal are legal in nature, and the bankruptcy court has performed the necessary fact-finding. The risk of creating piecemeal litigation is slim, and review furthers judicial efficiency, as our determination on the correctness of the bankruptcy judge's order may obviate the need for more proceedings. Although we see no risk of irreparable harm to the parties from delaying appellate review, because the bankruptcy and district courts stayed operation of their orders pending appeal, this factor alone does not preclude our review where the other three factors weigh in favor of our jurisdiction. Cf. Lakeshore Village, 81 F.3d at 107-08(finding no jurisdiction where three of the balancing factors weighed against review, and the fourth was neutral). . The Trustee alleged these four bases as separate predicates, each individually sufficient to support a denial of discharge. The bankruptcy court found all four present. In affirming the bankruptcy court's grant of summary judgment to the Trustee on denial of discharge, the district court rested its decision upon one of these bases, the Latmans’ false statements on their bankruptcy schedules. For this reason," }, { "docid": "15911083", "title": "", "text": "the district court remands for further factual findings related to a central issue raised on appeal.” Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 904 (9th Cir.1993); see Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore), 81 F.3d 103, 105 (9th Cir.1996). We have applied two related balancing tests in determining finality, both in conjunction and separately. See Walthall v. U.S., 131 F.3d 1289, 1293 (9th Cir.1997) (citing Vylene test); In re Lakeshore, 81 F.3d at 106; In re Bonner Mall, 2 F.3d at 904 (citing In re Stanton, 766 F.2d at 1288 n. 8). In contrast to the finality concerns raised in the usual case in which the district court reverses and remands the bankruptcy court order for further factual findings, the district court here declined to exercise jurisdiction after determining that the substantive consolidation order was non-final, and therefore, remanded this action for further proceedings. Thus, the sole question posed on appeal is whether the district court properly dismissed the investors’ appeal for lack of finality. As such, the balancing tests set forth in Vyl-ene and Bonner Mall do not apply. Because the district court erred in dismissing the investors’ appeal for lack of finality, we may exercise jurisdiction over the appeal of the district court decision. Ill The bankruptcy court did not err in substantively consolidating the estates, nor in doing so mmc pro tunc. We review the bankruptcy court’s decision independently of the district court’s decision. See In re Lewis, 113 F.3d at 1043. We review the bankruptcy court’s conclusions of law de novo and its findings of fact for clear error. See id. A bankruptcy court’s determination of whether to issue an order nunc pro tunc “is reviewed for abuse of discretion or erroneous application of the law.” See Atkins v. Wain, Samuel & Co. (In re Atkins), 69 F.3d 970, 973 (9th Cir.1995). Thus, we will not reverse the nunc pro tunc aspect of the bankruptcy court’s order of substantive consolidation unless we have a definite and firm conviction that the bankruptcy court" }, { "docid": "15911082", "title": "", "text": "Auto-Train, 810 F.2d at 276); In re Augie/Restivo, 860 F.2d at 519. In the instant case, bankruptcy court “finally determine[d]” the “discrete issue” of whether WPI and APFC should be substantively consolidated with Bonham’s estate, a decision that “resolvefd] and seriously affect[ed] substantive rights” of the parties. The consolidation order is of the sort that “can cause irreparable harm if the losing party must wait until the bankruptcy court proceedings terminate before appealing.” In re Allen, 896 F.2d at 418 (citations omitted). We therefore conclude that the district court erred by holding that the order was not final for the purposes of appellate review. Cf. In re Lewis, 113 F.3d at 1044 (finding a disgorgement for purposes of appeal). The bankruptcy court order was final and appealable. The district court order was also final and appealable under § 158(d). Although a district court renders a final order when it affirms or reverses a bankruptcy court’s final order, see In re Vylene Enterprises, 968 F.2d at 894, a district court’s order is ordinarily not final “when the district court remands for further factual findings related to a central issue raised on appeal.” Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 904 (9th Cir.1993); see Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore), 81 F.3d 103, 105 (9th Cir.1996). We have applied two related balancing tests in determining finality, both in conjunction and separately. See Walthall v. U.S., 131 F.3d 1289, 1293 (9th Cir.1997) (citing Vylene test); In re Lakeshore, 81 F.3d at 106; In re Bonner Mall, 2 F.3d at 904 (citing In re Stanton, 766 F.2d at 1288 n. 8). In contrast to the finality concerns raised in the usual case in which the district court reverses and remands the bankruptcy court order for further factual findings, the district court here declined to exercise jurisdiction after determining that the substantive consolidation order was non-final, and therefore, remanded this action for further proceedings. Thus, the sole question posed on appeal is whether the district court properly dismissed the investors’ appeal" }, { "docid": "16625719", "title": "", "text": "decisions with respect to the Camachos and the Raihls pursuant to 28 U.S.C. § 158(a). We have jurisdiction over appeals from the district court’s final judgments pursuant to 28 U.S.C. § 158(d). The district court had original jurisdiction over the Walt-halls’ case pursuant to 28 U.S.C. §§ 1340, 1345. We have jurisdiction over final orders by the district court pursuant to 28 U.S.C. § 1291. A district court order that affirms or reverses a bankruptcy court order is final. In re Stanton, 766 F.2d 1283, 1287 (9th Cir.1985) (Stanton). However, finality determi nation in the bankruptcy context has its own set of rules. We examine whether we should consider the district court’s decision final in a bankruptcy case by considering “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” In re Lakeshore Village Resort, Ltd., 81 F.3d 103, 106 (9th Cir.1996) (Lakeshore), citing In re Vylene Enterprises, Inc., 968 F.2d 887, 895-96 (9th Cir.1992). A. The Walthalls’ appeal does not involve a bankruptcy court. Rather, they filed an action in a district court, seeking refunds of taxes paid and an injunction against collection of the amounts still unpaid. The district court entered summary judgment against the Walthalls. We have jurisdiction pursuant to 28 U.S.C. § 1291. B. The government challenges our jurisdiction to review the Camachos’ appeal. Although the district court remanded their ease to the bankruptcy court for further factual findings which ordinarily prevents our jurisdiction, Stanton, 766 F.2d at 1287, the Camachos argue that we have jurisdiction over their appeal based on two narrow exceptions described in In re Bonner Mall Partnership, 2 F.3d 899 (9th Cir.1993), cert. granted and case dismissed as moot, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). In Bonner, we held that we could assert jurisdiction, even where a case had been remanded “for factual findings on a central issue if that issue is legal in nature and its resolution either 1) could dispose" }, { "docid": "15342346", "title": "", "text": "to the Emerys and retaining $198,686 in fees. Kasdan cross-claimed for quantum meruit (to recover fees incurred in litigating the Emerys’ claim) and for declaratory relief. The parties filed cross-motions for summary judgment. After the bankruptcy court concluded that Kasdan’s and World Savings’ claims were “related proceedings” under 28 U.S.C. § 157(a), Kasdan and World Savings consented to the bankruptcy court’s issuance of a final judgment. See 28 U.S.C. § 157(c)(2). The bankruptcy court entered summary judgment in favor of Kasdan, and, concluding that the summary judgment ended the litigation between Kasdan and World Savings, certified the judgment as final according to Fed.R.Civ.P. 54(b) and Fed. R. Bankr.P. 7054(a). World Savings appealed to the United States District Court for the Central District of California, which reversed the decision of the bankruptcy court. Because we agree with the bankruptcy court, we reverse. PRELIMINARIES A. Jurisdiction Although both parties urge us to decide this appeal, we have an independent duty to examine our subject matter jurisdiction. Bonner Mall P’ship v. U.S. Bancorp Mortgage Co. (In re Bonner Mall P’ship), 2 F.3d 899, 903 (9th Cir.1993) dismissed on other grounds, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). We have jurisdiction if both the bankruptcy court’s order and the district court’s order are final. Id.; 28 U.S.C. § 158(d). Even though the district court remanded the case to the bankruptcy court for further fact-finding, the district court order is final under the pragmatic approach to finality employed in the bankruptcy context. See Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 980 (9th Cir.2001). Given the unique nature of bankruptcy proceedings, we balance several policies in determining whether a remand order is final: (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systematic interest in preserving the bankruptcy court’s role as a finder of fact; and (4) whether delaying review would cause irreparable harm. Id. (citing Lundell v. Anchor Constr. Specialists (In re Lundell), 223 F.3d 1035, 1038 (9th Cir.2000)). We have consistently recognized that when an appeal “could dispose of the case or proceedings and obviate the" }, { "docid": "15125264", "title": "", "text": "finality in light of the unique nature of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings.” Id. (internal quotation marks omitted). In certain instances, we will deem such orders final. In Stanley, we drew on prior case law to identify four factors relevant in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under § 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. 81 F.3d at 106 (citing Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887, 895-96 (9th Cir.1992)). In recent cases we have employed a more liberal approach to determining finality. In North Slope Borough v. Barstow (In re Bankr. Estate of Markair, Inc.), 308 F.3d 1057, 1059-60 (9th Cir.2002), and Lundell, 223 F.3d at 1038, we applied the two-factor test set forth in Bonner Mall. The test asks whether the central issue raised on appeal “is legal in nature and its resolution either (1) could dispose of the case or proceedings and obviate the need for factfinding; or (2) would materially aid the bankruptcy court in reaching its disposition on remand.” Lundell, 223 F.3d at 1038 (citing Bonner Mall, 2 F.3d at 904); see also Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1171-72 (9th Cir.2003) (applying the Vyl-ene four-factor test and the Bonner Mall two-factor test interchangeably); Alexander v. Compton (In re Bonham), 229 F.3d 750, 763 (9th Cir.2000) (“We have applied two related balancing tests in determining finality, both in conjunction and separately.”). We accept jurisdiction here. The appeal concerns primarily a question of law: Whether the bankruptcy court properly applied the burden-of-proof rubric governing tax claims. Resolution of that question will materially aid the bankruptcy court’s determination of the extent to which the IRS’s claim should be allowed. Although the remand to the bankruptcy court involves factual matters, we have" }, { "docid": "16109475", "title": "", "text": "contract, or as a sanction for bad faith litigation. Other circuits have similarly concluded, relying on Budinich, that an appeal is final despite unresolved issues relating to sanctions. Like an award of attorneys’ fees or thé imposition of sanctions in non-bankruptcy cases, the award of sanctions under § 105(a) is separate from the merits. Lack of finality with respect to that issue, therefore, does not defeat our jurisdiction over the merits. The harder question is whether we also have jurisdiction over the sanction order. Under the flexible finality standards applicable to bankruptcy appeals, we consider four factors in determining whether a district court’s remand order is final: (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. Scovis, 249 F.3d at 980 (citing Lundell v. Anchor Constr. Specialists (In re Lundell), 223 F.3d 1035, 1038 (9th Cir.2000)). Applying these standards, we have consistently recognized that when an appeal involves a legal question independent of the fact-finding required by the remand order, so that an immediate appeal “could dispose of the case or proceedings and obviate the need for fact-finding,” the competing considerations usually tip in favor of immediate review. See Scovis, 249 F.3d at 980; Lundell 223 F.3d at 1038. This so-called Bonner Mall exception derives from the case bearing that name. See Bonner Mall, 2 F.3d at 904. This case fits neatly within the Bonner Mall exception. The primary thrust of the Trustee’s argument on appeal is that the entire sanction award could be upheld as punitive sanctions, even if the district court was correct in ruling that the bankruptcy court’s award of attorneys’ fees was unreasonably high. Whether such punitive sanctions are available at all is a legal question entirely independent of the amount of any attorneys’ fees, sanctions or punitive damages. Only the amount issue was remanded to the bankruptcy court. Our deciding the legal issue regarding the availability of punitive sanctions could eliminate the need for further fact-finding. As it" } ]

[ { "docid": "23632365", "title": "", "text": "First Church of Deliverance, 49 Ill. App.3d 213, 8 Ill.Dec. 823, 365 N.E.2d 1285, 1289 (1977). The warranty disclaimer provisions of Ill.Ann.Stat. ch. 26, § 2-316 apply to equipment leases when the Illinois U.C.C. implied warranties are found applicable. Walter E. Heller, 8 Ill.Dec. at 828, 365 N.E.2d at 1290. Assuming without deciding that the U.C.C. implied warranties of merchantability and fitness for a particular purpose apply to this ease, section 2-316(2) of the Illinois U.C.C. thus controls whether the warranty disclaimer in the lease agreement is valid. Section 2-316(2) provides that for a written disclaimer of the implied warranties to be valid, the disclaimer language must be “conspicuous.” Section 1-201(10) defines a conspicuous writing as one that a reasonable person against whom it is to operate ought to have noticed. It further provides that a printed heading in capitals is conspicuous, and that language in the body of a form is conspicuous if it is in larger or other contrasting type or color. The concept of conspicuousness is thus one of reasonable notice-whether the writing would have invited the attention of a reasonable person. Alan Wood Steel Co. v. Capital Equipment Enterprises, Inc., 39 Ill.App.3d 48, 349 N.E.2d 627 (App.Ct.1976); U.C.C. § 1-201, Official Comment 10. Disclaimers of implied warranties are not favored by Illinois courts and are strictly construed against sellers. Overland Bond & Investment Corp. v. Howard, 9 Ill.App.3d 348, 292 N.E.2d 168 (1972). Therefore a writing is not conspicuous if it is only in slight contrast with the rest of the instrument. Since the concept of conspicuousness is one of reasonableness and notice, the circumstances play a crucial role in whether language is conspicuous. Where the disclaimer is in a commercial transaction involving experienced businesspersons rather than a consumer transaction involving ordinary purchasers, the concept of reasonableness under the circumstances depends on what a reasonable businessperson is expected to notice. Section 4 of the lease agreement is the warranty disclaimer. That clause has a boldface heading “Warranties,” and that boldface heading is larger than the boldface heading of the earlier and some of the later lease" } ]

[ { "docid": "15060239", "title": "", "text": "in all caps and is not bold face type. It is also only 7 points high. Rule 32 of the Fed.R. App.P. requires that all printed material in briefs submitted to this court be a minimum of 11 points high or almost twice the size of the disclaimers buried on the back side of the Burroughs agreements. On the front of the software agreement a sentence standing alone in large capital bold letter directs the signor to read the warranty terms on the back, “THE TERMS AND CONDITIONS, INCLUDING THE WARRANTY AND LIMITATION OF LIABILITY, ON THE REVERSE SIDE ARE PART OF THE AGREEMENT.” The back of the contract contains 14 separately numbered and titled sections, some of which are further divided into paragraphs. The ninth section, entitled WARRANTY, contains the exclusion clause in the fourth paragraph of the section. The clause is in all capital letters, but it is not bold type. The only words in bold on the back of the form are the title headings and the words TERMS AND CONDITIONS at the top of the page. Whether a disclaimer is conspicuous is not simply a matter of measuring the type size or looking at the placement of the disclaimer within the contract. A reviewing court must ascertain that a reasonable person in the buyer’s position would not have been surprised to find the warranty disclaimer in the contract. J. & W. Equipment Inc. v. Weingartner, 5 Kan.App.2d 466, 618 P.2d at 866. A factor to consider is the sophistication of the parties. See e.g., Collins Radio v. Bell, 623 P.2d at 1051 (“we note that the disclaimer [in capital letters] is of minimal compliance, and we do not venture to state what factors might alter this determination in future cases outside of the sophistication of the buyer.”) (emphasis in the original); FMC Finance Corp. v. Murphree, 632 F.2d 413, 419 (5th Cir.1980); Gilbert & Bennett Mfg. Co. v. Westinghouse Electric Corp, 445 F.Supp. 537 (D.Mass.1977); Avenell v. Westinghouse Electric Corp., 41 Ohio App.2d 150, 324 N.E.2d 583 (1974). Also relevant as to whether a reasonable person" }, { "docid": "18595730", "title": "", "text": "warranties or limit the remedies available for breach of warranty by placing the language in the dealer’s contract. Id. at 1324. The court recognized that manufacturers faced potentially unlimited liability if a privity requirement was invoked to bar them from limiting or disclaiming their liability for breach of warranty to the purchaser. Id. at 1323. Thus, an otherwise proper disclaimer clearly made in the dealer’s contract is effective against the buyer. Cf. Clevenger & Wright Co. v. A.O. Smith Harvestore Products, Inc., 625 S.W.2d 906 (Mo.App. 1981) (manufacturer’s disclaimer of express warranties placed in the contract between purchaser and seller held effective against a remote purchaser). The rule which Hunter attempts to present conflicts with the spirit of the Arkansas cases and decisions of other courts applying the Uniform Commercial Code. A clear manufacturer’s disclaimer or limitation of remedy made in a dealer’s contract may become part of the basis of the bargain and is not ineffective solely because the manufacturer is not a party to the contract. We thus conclude that the Arkansas courts would adopt the legal principle expressed in the district court’s instruction. We therefore reject appellant’s challenge. II. Hunter next argues that TI’s attempted disclaimer of warranties fails because the writing was not conspicuous as required by Arkansas Code section 85-2-316(2). A clause is conspicuous “when so written that a reasonable person against whom it is to operate ought to have noticed it * * * * Language in the body of a form is ‘conspicuous’ if it is in larger or contrasting type or color.” Ark.Stat.Ann. § 85-1-201(10) (1961 & Supp.1985). Whether a writing is conspicuous is a matter for the court to decide. Id. TI’s disclaimer appeared on the back of the dealer’s purchase order, but in print larger than the surrounding writing. Further, writing in large print on the front of the form, directly above the line for the buyer’s signature, directed the buyer to the controlling terms on the back. We believe that the writing was such that should have attracted the attention of a reasonable buyer and, therefore, satisfies the Arkansas" }, { "docid": "23125196", "title": "", "text": "the Truth in Lending Act, 15 U.S.C. § 1632, uses language similar to FCRA’s § 1681i(d) by requiring disclosures in credit transactions to be made “clearly and conspicuously, in accordance with regulations.” The regulations also require clear and conspicuous disclosure. See 12 C.F.R. §§ 226.5(a) and 226.17(a) (1992) (part of Regulation Z). In Smith v. Chapman, 436 F.Supp. 58, 63-64 (W.D.Tex.1977), aff'd, 614 F.2d 968 (5th Cir.1980), the trial court considered a retail installment contract to purchase a car and found that Chapman had violated the Truth in Lending Act. Chapman had not disclosed clearly and conspicuously that physical damage insurance was necessary. The insurance provision was printed on the back of the contract, not the front. The statement appeared in paragraph 11 “in the same size print and type as the rest of the writing on the reverse side.” In reaching its conclusion, the trial court construed Regulation Z’s disclosure requirements in light of the Uniform Commercial Code definition of “conspicuous”: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals ... is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.... Whether a term or clause is “conspicuous” or not is for decision by the court. U.C.C. § 1-201(10) (1992). The comment to § 1-201(10) states that “the test is whether attention can reasonably be expected to be called to it.” The court concluded that there was nothing about Chapman’s insurance provision that would call anyone’s attention to it. The term “conspicuous” has been construed most frequently with the Uniform Commercial Code § 2-316(2), which requires that any exclusion or modification of the implied warranty of merchantability be conspicuous, and that any exclusion or modification of the implied warranty of fitness for a particular purpose be made in a conspicuous writing. A contract’s warranty disclaimer satisfies the conspicuous requirement when it is printed in all capital letters, when it appears in a larger type than" }, { "docid": "7331011", "title": "", "text": "a more significant relationship with the transaction. In particular, the place of delivery rule is inapplicable where ‘the contract contemplates a continued relationship between the parties which will be centered in a state other than that where delivery took place’, Restatement comment / to § 191. This is clearly the case with an agreement of this nature, see Collins Radio Co. of Dallas v. Bell, 623 P.2d 1039 (Okl.App.1980). Colorado law again governs these claims. Colorado law accordingly governs both the contract and tort issues. II THE VALIDITY OF THE DISCLAIMERS The validity of disclaimer clauses in Colorado is governed by Colo.Rev.Stat. § 4-2-316(2). This demands that to exclude the implied warranty of merchantability, the language of the warranty must actually mention merchantability, must be in writing, and must be conspicuous. To exclude an implied warranty of fitness, the language must again be conspicuous but the warranty excluded need not be specifically mentioned. The provision states a disclaimer clause to the effect ‘There are no warranties which extend beyond the description on the face hereof’ will suffice to exclude the warranty of fitness of purpose. ‘Conspicuous’ is defined by § 4-1-201(10) in terms of a clause written so that a reasonable person against whom it is to operate ought to have noticed it. § 4-1-201(10) is qualified by § 4-2-316(3). Sub-paragraph (a) of this provision reads as follows; Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’, or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain there is no implied warranty. There are two clauses in issue. The first appears in the actual dealership agreement and reads; There are no warranties, express or implied, made by Seller on the products sold by it to Dealer, or anyone else, except as follows ... Dealership Agreement ¶ 8. I find this clause to be conspicuous for the purposes of the provision. Plaintiffs seek to argue the clause was not conspicuous within the meaning of the provision on the basis the print was not" }, { "docid": "23609054", "title": "", "text": "implied warranties, Subsection (2) of U.C.C. 2-316 provides in part: “ . . .to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.” From the face of the exclusionary clause, it is apparent that “merchantability” is expressly mentioned and that the exclusion for fitness is “by a writing.” The conspicuousness requirement, however, exposes a potential defect in the last paragraph of Section 8 which purports, in standard small print, to exclude any warranties of merchantability and fitness. “Conspicuousness” is a term of art under the code, and is defined in Section 1-201(10): “ ‘Conspicuous’: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. But in a telegram any stated term is ‘conspicuous’. Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” The official comment to this definition states: “ ‘Conspicuous’. New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.” Similarly, comment one to U.C.C. 2-316 notes that the Section is intended to allow exclusion of implied warranties “only by conspicuous language or other circumstances which protect the buyer from surprise.” There are numerous cases illustrating what such “other circumstances” might consist of. In U. S. Fibres v. Proctor & Schwartz, 509 F.2d 1043 (CA 6 1975), the court found exclusionary language in standard size type effective where the caption “LIABILITY CLAUSE” was in bold type and the evidence indicated buyer had reviewed the exclusion. Smith v. Sharpensteen, 521 P.2d 394 (Okl.1974), likewise held effective a disclaimer in" }, { "docid": "7331012", "title": "", "text": "will suffice to exclude the warranty of fitness of purpose. ‘Conspicuous’ is defined by § 4-1-201(10) in terms of a clause written so that a reasonable person against whom it is to operate ought to have noticed it. § 4-1-201(10) is qualified by § 4-2-316(3). Sub-paragraph (a) of this provision reads as follows; Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’, or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain there is no implied warranty. There are two clauses in issue. The first appears in the actual dealership agreement and reads; There are no warranties, express or implied, made by Seller on the products sold by it to Dealer, or anyone else, except as follows ... Dealership Agreement ¶ 8. I find this clause to be conspicuous for the purposes of the provision. Plaintiffs seek to argue the clause was not conspicuous within the meaning of the provision on the basis the print was not bold. This is not necessary, J & W Equipment, Inc. v. Weingartner, 5 Kan.App.2d 466, 618 P.2d 862, 865-866 (1980). In any event, the relevant clause was indented, which does point to its being conspicuous, Michican Mutual Liability Insurance Co. v. Fruehauf Corp., 63 Mich.App. 109, 234 N.W.2d 424, 428 (1975). In transactions such as that in question here, between a commercial buyer and a commercial seller, plaintiffs’ weak claim there is no evidence the clause was drawn to its attention is simply untenable, see Cherokee Investment Company v. Voiles, 166 Colo. 270, 443 P.2d 727, 729 (1968). Further, the exclusion clause employed comes within the requirements of the statute insofar as disclaimer of the implied warranty of fitness for purpose is concerned. Accordingly, defendant’s motion for summary judgment on the first claim for relief is granted. This is not the case, however, regarding the implied warranty of merchantability. The word merchantability is not mentioned. The statute demands it must be. The prevalent view is that the provisions of § 4-2-316(3) do not qualify this" }, { "docid": "23609055", "title": "", "text": "form is ‘conspicuous’ if it is in larger or other contrasting type or color. But in a telegram any stated term is ‘conspicuous’. Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” The official comment to this definition states: “ ‘Conspicuous’. New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.” Similarly, comment one to U.C.C. 2-316 notes that the Section is intended to allow exclusion of implied warranties “only by conspicuous language or other circumstances which protect the buyer from surprise.” There are numerous cases illustrating what such “other circumstances” might consist of. In U. S. Fibres v. Proctor & Schwartz, 509 F.2d 1043 (CA 6 1975), the court found exclusionary language in standard size type effective where the caption “LIABILITY CLAUSE” was in bold type and the evidence indicated buyer had reviewed the exclusion. Smith v. Sharpensteen, 521 P.2d 394 (Okl.1974), likewise held effective a disclaimer in inconspicuous print relying on its title of “No Warranty” and buyer’s having been required to read it. A further example of “other circumstances” protecting the buyer from surprise is found in Tennessee-Carolina Transport v. Strick, 283 N.C. 423, 196 S.E.2d 711 (1973), where the court noted that a disclaimer should not be declared inoperative for inconspicuousness without inquiring whether the buyer was protected from surprise by factors bearing upon matters other than the physical appearance of the clause itself, e. g., actual awareness of a disclaimer running between non-consumer parties of substantially equal bargaining power. See also Williams v. College Dodge, 11 U.C.C.Rep. Serv. (Mich.Dist.Ct.1972). The court determines that Section 8 of terms and conditions satisfies Section 2-316 by virtue of “other circumstances which protect the buyer from surprise.” Cf. U.C.C. 2-316, Comment 1. Fargo’s role in this transaction was as a sophisticated business buyer experienced in commercial dealings. When Kearney & Trecker submitted a quotation accompanied by “terms and conditions,” Fargo attached it to its return order separately initialed by Fortunski, along with a" }, { "docid": "2677843", "title": "", "text": "claim. See Zurn Constructors, Inc. v. B.F. Goodrich Co., 746 F.Supp. 1051, 1055 (D.Kan.1990); Simpson v. Widger, 311 N.J.Super. 379, 709 A.2d 1366, 1373 (1998). Plaintiffs have sufficiently alleged that defendants fraudulently concealed the Y2K defects in their products in order to satisfy their obligations at this stage of the proceedings. 2. Plaintiff Intrax Agreed to a Disclaimer of All Warranties On the merits of this cause of action, defendants contend that the implied warranty claim is barred by a disclaimer of those warranties contained in the purchase contract. The disclaimer is contained two-thirds of the way through a single page document titled “Terms and Conditions,” and is written in upper-case type — in the same font size as the rest of the document, and without boldfacing, italics, or other special typeface — as follows: AT & T AND ITS AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. See Wiessler Deck, Exh. C, para. 13. The Uniform Commercial Code, as adopted by New Jersey, specifically authorizes parties to waive these warranties, so long as the waiver is “in writing and conspicuous.” See N.J. Stat. Ann. § 12A:2-316(2). The Code states: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals ... is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. The Code further provides that “the court” shall determine whether a term or clause is “conspicuous.” See N.J. Stat. Ann. § 12A:1 — 201(10); see also Sierra Diesel Injection Service, Inc. v. Burroughs Corp., Inc., 890 F.2d 108, 114 (9th Cir.1989). In making this determination, the Court must review the conspicuousness of the disclaimer in the context of the entire contract, and in light of the sophistication of the parties. See Sierra Diesel, 890 F.2d at 115. There is no mechanistic test that will apply to all cases. Id. In Sierra Diesel," }, { "docid": "15060240", "title": "", "text": "the top of the page. Whether a disclaimer is conspicuous is not simply a matter of measuring the type size or looking at the placement of the disclaimer within the contract. A reviewing court must ascertain that a reasonable person in the buyer’s position would not have been surprised to find the warranty disclaimer in the contract. J. & W. Equipment Inc. v. Weingartner, 5 Kan.App.2d 466, 618 P.2d at 866. A factor to consider is the sophistication of the parties. See e.g., Collins Radio v. Bell, 623 P.2d at 1051 (“we note that the disclaimer [in capital letters] is of minimal compliance, and we do not venture to state what factors might alter this determination in future cases outside of the sophistication of the buyer.”) (emphasis in the original); FMC Finance Corp. v. Murphree, 632 F.2d 413, 419 (5th Cir.1980); Gilbert & Bennett Mfg. Co. v. Westinghouse Electric Corp, 445 F.Supp. 537 (D.Mass.1977); Avenell v. Westinghouse Electric Corp., 41 Ohio App.2d 150, 324 N.E.2d 583 (1974). Also relevant as to whether a reasonable person would have noticed a warranty disclaimer are the circumstances of the negotiation and signing. The trial court found that Mr. Cath-ey was not familiar with computers or with contracts. Mr. Cathey read the front of the contracts, but did not notice the warranty disclaimer clauses on the back. Given Mr. Cathey’s lack of sophistication in the field of contracts and the written and oral representations made by Burroughs, it is not surprising that it would require more than a collection of standardized form contracts on various subjects involved in a transaction to notify a reasonable person in Mr. Cathey’s position that the B-80 came without any warranty of merchantability. Burroughs faults the trial court for holding that all warranty disclaimers must be in capital letters and in bold type, but the trial court did not rule in so mechanistic a fashion. The trial court’s rulings consider type size and boldness as factors in an overall analysis and also the fact that the disclaimers were on the back of the page. Cf. Sellman Auto, Inc. v." }, { "docid": "18032145", "title": "", "text": "from the other portion of the text where located. Though neither the Act nor Regulation Z defines the terms clearly and conspicuously, we find a definition of such terms in our own Uniform Commercial Code, Title 7A, Sec. 1-201(10). There it is said: ‘A term or clause is conspicuous when it is so written that a reasonable person ought to have noticed it Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.’ With that definition, the required disclosures of the default or delinquency charges is not as a matter of law clear and conspicuously made in the contract. Jefferson, supra, at p. 222. The term “conspicuous” has frequently been construed in connection with Section 2-316(2) of the Uniform Commercial Code relating to the exclusion or modification of warranties. The Fifth Circuit, considering an attempted disclaimer clause in a warranty form, concluded: Examination of a photostatic copy of the warranty (in the record) promptly reveals that the warranty form is printed in the same size type throughout. We hold that the requirement of conspicuosity was not met. Holcomb v. Cessna Aircraft Co., 439 F.2d 1150, 1158 (5th Cir. 1971). In a contract for the sale of farm machinery where the disclaimer of warranties clause was on the back of the contract under the bold letter heading of “warranty and agreement,” a Kentucky Appellate Court held: In the instant case the exclusionary language was not in ‘larger or other contrasting type or color’ as contemplated by the statutory definition . . . Besides being in ordinary type, the exclusion was on the back of the instrument, with nothing on the front, except some words likewise in ordinary type, to direct attention to it. Such a location alone has been held to put the exclusion out of the conspicuous class. Massey-Ferguson Inc. v. Utley, 439 S.W.2d 57, 59 (Ky.1969). In Hertz Commercial Leasing Corp. v. Transportation Credit Clearinghouse, 59 Misc.2d 226, 298 N.Y.S.2d 392 (1969), a standard form contract for the lease of equipment which contained disclaimer of warranties in the body" }, { "docid": "18032146", "title": "", "text": "type throughout. We hold that the requirement of conspicuosity was not met. Holcomb v. Cessna Aircraft Co., 439 F.2d 1150, 1158 (5th Cir. 1971). In a contract for the sale of farm machinery where the disclaimer of warranties clause was on the back of the contract under the bold letter heading of “warranty and agreement,” a Kentucky Appellate Court held: In the instant case the exclusionary language was not in ‘larger or other contrasting type or color’ as contemplated by the statutory definition . . . Besides being in ordinary type, the exclusion was on the back of the instrument, with nothing on the front, except some words likewise in ordinary type, to direct attention to it. Such a location alone has been held to put the exclusion out of the conspicuous class. Massey-Ferguson Inc. v. Utley, 439 S.W.2d 57, 59 (Ky.1969). In Hertz Commercial Leasing Corp. v. Transportation Credit Clearinghouse, 59 Misc.2d 226, 298 N.Y.S.2d 392 (1969), a standard form contract for the lease of equipment which contained disclaimer of warranties in the body of the contract was before the court. The court found that words which have been set forth in type which is of the same size and style of print as part of a much larger paragraph and in same size and style or type as the remainder of the contract is not “conspicuous” within the meaning of U.C.C. § 1-201(10). See Zabriskie Chevrolet, Inc. v. Smith, 99 N.J.Super. 441, 240 A.2d 195; Boeing Airplane Co. v. O’Malley, 8 Cir., 329 F.2d 585; Hunt v. Perkins Machinery Co., 352 Mass. 535, 226 N.E.2d 228 (1967). If a court held that the required physical damage insurance disclosure appearing in fine print on the reverse side of Plaintiff’s contract was “conspicuous”, then, that term would be rendered meaningless. Such a holding would be an open invitation to use fine print to make required disclosures and thus avoid the purpose of both the Credit Code and Truth in Lending Act in aiding consumers in the informed use of credit. Defendant has violated the Credit Code by not disclosing “conspicuously”" }, { "docid": "11420571", "title": "", "text": "1971); Twin City Plaza, supra at 1203. With respect to damages, which were reasonably assessed, we find the trial court did not err in denying a judgment n.o.v. on Du Pont’s counterclaim for paint sold and delivered or further counterclaim for value of services rendered. Nor did the trial court abuse its discretion in denying defendant’s motions for new trial. The judgment appealed from is affirmed. . The Uniform Commercial Code is Chapter 26, Ill.R.S. We shall cite sections by their U.C.C. section numbers, omitting the chapter numbers. With the exception of a few sections not herein applicable, Illinois has adopted the 1972 text and comments to the U.C.C. . Section 2-313(l)(b) provides: (1) Express warranties by the Seiler are created as follows .... (b) Any description of the goods which is made part of the bargain creates an express warranty that the goods shall conform to the description. . Section 2-315 of the U.C.C. provides: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified ... an implied warranty that the goods shall be fit for such purpose. . Section 2-317 of the U.C.C. provides in part: Warranties whether express or implied shall be construed as consistent with each other and as cumulative . . When dealing with disclaimers, some courts, pursuant to U.C.C. § 1-201(10), have looked to the “conspicuousness” of such disclaimers and construed any possible ambiguity in intent or content against the seller. Construction Aggregates Corp. v. Hewitt-Robins, Inc., 404 F.2d 505 (7th Cir. 1968); Boeing Airplane Co. v. O’Mal-ley, 329 F.2d 585 (8th Cir. 1964). The buyer, these courts reason, should not be subjected to surprise. U.C.C. § 2-316, comment 1; Tennessee Carolina Transp., Inc. v. Strick Corp., 283 N.C. 423, 196 S.E.2d 711 (1973). Hence, if there is either doubt as to the intent of the parties, or an unnegotiated reliance by buyer upon seller’s representations, the disclaimers are" }, { "docid": "21402611", "title": "", "text": "of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.” The statute further provides that warranties can be excluded through a prior course of dealing or usage of trade in the industry. KRS 355.2—316(3)(c); Bickett v. W.R. Grace & Co., 12 U.C.C.Rep.Serv. 629 (W.D.Ky.1972). As the statute requires, the warranty disclaimer language must conspicuously appear on the writing. The disclaimer is conspicuous if it is set in larger than normal print, a different typesetting, a different color, or otherwise structured so as to draw the attention of the other contracting party. KRS 355.1-201(10) (A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.); Gooch v. Dowell, Inc., Ky.App., 743 S.W.2d 38, 40 (1988); Cline v. Allis-Chalmers Corp., Ky.App., 690 S.W.2d 764, 768 (1985); Greg Coats Cars, Inc. v. Kasey, (Ky.App.) 576 S.W.2d 251, 253 (1978). The decision regarding the conspicuousness of the warranty disclaimer is a question of law that the Court must decide. KRS 355.1-201(10). The Court finds the language used by DuPont in its warranty disclaimer to be conspicuous. This disclaimer language appears in an offset boxed section. The heading is written in a bold typesetting and the specific language disclaiming all the implied and express warranties appears in all capital letters. These actions were adequate to put a reasonable party on notice of the disclaimers. In the present case, the language did provide notice to Gooch that DuPont made no other warranties concerning the product. Gooch’s deposition reveals that he read the disclaimer language before applying the Accent. Furthermore, he understood it to mean that “DuPont was selling a product they made no warranty on.” [DN 46, Affidavit of Mark J. Carpenter, Exhibit A, Excerpts from the Deposition of Steve Gooch, p 34-37], The disclaimer specifically states that “DUPONT MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY OF FITNESS OR OF MERCHANTABILITY" }, { "docid": "15060236", "title": "", "text": "under complete control. These representations became part of the basis of the bargain. NRS 104.2313. Under NRS § 104.2316(1) when an express warranty is read together with a warranty disclaimer, the express warranty is given effect over the disclaimer. The warranty disclaimer clauses in the printed form contracts were ineffective to avoid the express warranty. II. CONSPICUOUSNESS OF THE WARRANTY EXCLUSION The trial court ruled that the warranty exclusion clauses in the Burroughs contracts were not conspicuous and therefore not effective to waive the implied warranty of merchantability. Warranty exclusions are permitted under the UCC § 2-316 to allow parties to bargain to allocate the risk of loss. However, exclusions of warranties are generally disfavored, and standardized take it or leave it form contracts such as the one in this case are construed against the drafter. They are subject to the general obligation of good faith and of not imposing unconscionable terms upon a party. Restatement (Second) of Contracts § 211. Nevada has adopted the UCC waiver of warranty language in NRS § 104.2316. According to official comment one the purpose of the warranty waiver section is to “protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty and permitting the exclusion of implied warranties only by conspicuous language or other circumstances which protect the buyer from surprise.” Conspicuousness is defined by NRS § 104.1201(10): “A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.... Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color.” Official comment 10 notes that “the test is whether attention can reasonably be expected to be called to it.” “Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” NRS § 104.1201(10). Review of the trial court’s finding is de novo. Collins Radio Co. of Dallas v. Bell, 623 P.2d 1039, 1051 (Okla.App.1980); J & W Equipment, Inc. v. Weingartner, 5" }, { "docid": "23632364", "title": "", "text": "Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties agree that the issues presented on appeal are governed by Illinois law. The lease contract itself provided that it was to be governed by Illinois law. Mississippi, the forum state for this case, recognizes that parties may legitimately control the choice of substantive law in a contract dispute as long as the state law selected bears a reasonable relation to the transaction. United States v. Biloxi Municipal School District, 219 F.Supp. 691, 695 (SID. Miss.1963), aff’d sub nom. United States v. Madison County Board of Education, 326 F.2d 237 (5th Cir. 1963); Miss.Code Ann. § 75-1-105(1) (1972). See also Dunavent Enterprises, Inc. v. Ford, 294 So.2d 788, 791 (Miss.1974). Because of the sufficient contacts of this case with Illinois, the lease contract validly invokes Illinois law. III. Validity of Warranty Disclaimer A. Disclaimer Conspicuousness Illinois has adopted the Uniform Commercial Code and applies selected provisions of the U.C.C. to equipment leases. Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance, 49 Ill. App.3d 213, 8 Ill.Dec. 823, 365 N.E.2d 1285, 1289 (1977). The warranty disclaimer provisions of Ill.Ann.Stat. ch. 26, § 2-316 apply to equipment leases when the Illinois U.C.C. implied warranties are found applicable. Walter E. Heller, 8 Ill.Dec. at 828, 365 N.E.2d at 1290. Assuming without deciding that the U.C.C. implied warranties of merchantability and fitness for a particular purpose apply to this ease, section 2-316(2) of the Illinois U.C.C. thus controls whether the warranty disclaimer in the lease agreement is valid. Section 2-316(2) provides that for a written disclaimer of the implied warranties to be valid, the disclaimer language must be “conspicuous.” Section 1-201(10) defines a conspicuous writing as one that a reasonable person against whom it is to operate ought to have noticed. It further provides that a printed heading in capitals is conspicuous, and that language in the body of a form is conspicuous if it is in larger or other contrasting type or color. The concept of conspicuousness is thus one of reasonable notice-whether the" }, { "docid": "18595731", "title": "", "text": "would adopt the legal principle expressed in the district court’s instruction. We therefore reject appellant’s challenge. II. Hunter next argues that TI’s attempted disclaimer of warranties fails because the writing was not conspicuous as required by Arkansas Code section 85-2-316(2). A clause is conspicuous “when so written that a reasonable person against whom it is to operate ought to have noticed it * * * * Language in the body of a form is ‘conspicuous’ if it is in larger or contrasting type or color.” Ark.Stat.Ann. § 85-1-201(10) (1961 & Supp.1985). Whether a writing is conspicuous is a matter for the court to decide. Id. TI’s disclaimer appeared on the back of the dealer’s purchase order, but in print larger than the surrounding writing. Further, writing in large print on the front of the form, directly above the line for the buyer’s signature, directed the buyer to the controlling terms on the back. We believe that the writing was such that should have attracted the attention of a reasonable buyer and, therefore, satisfies the Arkansas standard for conspicuousness. Hunter further argues that he was unaware that the disclaimer was being made by TI. The Code requires reasonable notice, not actual notice. Thus, Hunter’s assertion that he was not aware of the disclaimer is not dispositive. See IMC Finance Corp. v. Murphree, 632 F.2d 413, 419 (5th Cir.1980). In any case, the record does not bear out Hunter’s assertion. In his deposition, and again at trial, Hunter indicated that he was aware of the language on the back of the form, and specifically that an Arkansas Computer Company employee “pointed out that the legal comments were on the back [of the form] [and] we glanced down through it.” Tr. at 81. Hunter also argues that TI’s disclaimer of warranties and limitation of remedies is unconscionable under the Arkansas Code because TI was not a party to the contract, the disclaimers were part of a printed form which he was unable to change, and the form was signed two weeks after his oral commitment to purchase the equipment. First, we have adequately" }, { "docid": "23531715", "title": "", "text": "226 N.Y.S.2d 363, 181 N.E.2d 399 (1962); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Cyclops Corp. v. Home Insurance Co., 389 F.Supp. 476, 481 (W.D.Pa.), aff’d, 523 F.2d 1050 (3rd Cir. 1975). There is, however, no reason under the facts of this case to extend such protection to third party beneficiaries beyond that provided by the statute. . Section 1-201(10) of the Uniform Commercial Code provides that a term or clause is conspicuous “when it is so written that a reasonable person against whom it is to operate ought to have noticed it.” Whether a term or clause is conspicuous or not is for decision by the court. It strains credulity to suggest that plaintiffs had not noticed or were unaware of the exclusion of implied warranties in the Mitchell Unit I contract. . While the word “merchantability” was not mentioned in the Limitation of Liability clause, it was contained in the Guarantee clause. . It is clear that conduct which may obviate the application of a contractual limitation of liability does not necessarily obviate the disclaimer of warranties language. See Adams v. J. I. Case, 125 Ill.App.2d 388, 261 N.E.2d 1 (1970); Koehring Company v. A. P. I, Inc., 369 F.Supp. 882, 891 (E.D.Mich.1974). . The Guarantee provision reflects the agreement of the parties that repair or replacement of defective parts would “constitute fulfillment of all liabilities of the Company to the purchaser, whether based on contract, negligence or otherwise with respect to or arising out of such equipment.” Furthermore, while the Limitation of Liability provision does not specifically mention negligence, it does provide that the remedies of the purchaser are to be exclusive, and the liability of the seller with respect to any contract, or anything done in connection therewith — whether in contract, in tort, under any warranty, or otherwise — shall not exceed the price of the equipment or part on which such liability is based. These provisions are certainly broad enough to exclude recovery of consequential damages for any negligence on the part of the defendant. See Potomac Electric Power Co." }, { "docid": "23125197", "title": "", "text": "reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals ... is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.... Whether a term or clause is “conspicuous” or not is for decision by the court. U.C.C. § 1-201(10) (1992). The comment to § 1-201(10) states that “the test is whether attention can reasonably be expected to be called to it.” The court concluded that there was nothing about Chapman’s insurance provision that would call anyone’s attention to it. The term “conspicuous” has been construed most frequently with the Uniform Commercial Code § 2-316(2), which requires that any exclusion or modification of the implied warranty of merchantability be conspicuous, and that any exclusion or modification of the implied warranty of fitness for a particular purpose be made in a conspicuous writing. A contract’s warranty disclaimer satisfies the conspicuous requirement when it is printed in all capital letters, when it appears in a larger type than the terms around it, or when it is in a larger and boldface type. See, e.g., H.B. Fuller Co. v. Kinetic Systems, Inc., 932 F.2d 681, 689 (7th Cir.1991) (applying Wisconsin law); Arkwright-Boston Mfrs. Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1183 (5th Cir.1988) (applying Texas law); Hunter v. Texas Instruments, Inc., 798 F.2d 299, 302-03 (8th Cir.1986) (applying Arkansas law); Delhomme Indus., Inc. v. Houston Beechcraft, Inc., 669 F.2d 1049, 1061 (5th Cir.1982) (applying Kansas law); FMC Fin. Corp. v. Murphree, 632 F.2d 413, 419 (5th Cir.1980) (applying Illinois law); Earman Oil Co., Inc. v. Burroughs Corp., 625 F.2d 1291, 1298 (5th Cir.1980) (applying Florida law). Likewise, a disclaimer in boldface type, printed in all capitals on the face of the warranty above the buyer’s signature meets the definition of conspicuousness. Klo-Zik Co. v. General Motors Corp., 677 F.Supp. 499, 508 (E.D.Tex.1987). A disclaimer is not conspicuous, however, when it is printed in small print on the back of the document, when it is the same size and typeface as the" }, { "docid": "2677844", "title": "", "text": "by New Jersey, specifically authorizes parties to waive these warranties, so long as the waiver is “in writing and conspicuous.” See N.J. Stat. Ann. § 12A:2-316(2). The Code states: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals ... is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. The Code further provides that “the court” shall determine whether a term or clause is “conspicuous.” See N.J. Stat. Ann. § 12A:1 — 201(10); see also Sierra Diesel Injection Service, Inc. v. Burroughs Corp., Inc., 890 F.2d 108, 114 (9th Cir.1989). In making this determination, the Court must review the conspicuousness of the disclaimer in the context of the entire contract, and in light of the sophistication of the parties. See Sierra Diesel, 890 F.2d at 115. There is no mechanistic test that will apply to all cases. Id. In Sierra Diesel, where the same U.C.C. provision applied, the Ninth Circuit affirmed a district court ruling that a disclaimer on the back of a contract, written in 7-point capital letters, but not in bold face type, where the buyer was unsophisticated, was insufficiently conspicuous to be given effect. Id. In the course of its analysis, the Sierra court examined two Nevada Supreme Court decisions involving sophisticated parties where similar disclaimers were given effect. The Sierra court concluded that “a disclaimer in capital letters that mentions merchantability can be effective to exclude warranties,” although disclaimers in “capital letters as a matter of law will [not] be effective in all cases.” Id. at 115. Having reviewed the disclaimer at issue in the instant case, and considering the sophistication of the parties, the Court finds that the disclaimer is effective as a matter of law. Plaintiffs’ back-up argument is that even if the disclaimer is enforceable, it was contained only in the first of six agreements between Intrax and defendants. Therefore, plaintiffs argue that at a minimum Intrax’s claim for" }, { "docid": "15060237", "title": "", "text": "to official comment one the purpose of the warranty waiver section is to “protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty and permitting the exclusion of implied warranties only by conspicuous language or other circumstances which protect the buyer from surprise.” Conspicuousness is defined by NRS § 104.1201(10): “A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.... Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color.” Official comment 10 notes that “the test is whether attention can reasonably be expected to be called to it.” “Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” NRS § 104.1201(10). Review of the trial court’s finding is de novo. Collins Radio Co. of Dallas v. Bell, 623 P.2d 1039, 1051 (Okla.App.1980); J & W Equipment, Inc. v. Weingartner, 5 Kan.App.2d 466, 618 P.2d 862, 864 (1980). Both the hardware and software agreements contained the following warranty disclaimer, “Except as specifically provided herein, there are no other warranties, express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.” The disclaimers are located on the back side of the agreements. They are in substantially smaller and lighter type, both in color and in contrast, compared to the language on the face of the Burroughs’ agreements. The letters used for the disclaimers are larger than some of the other printing on the back sides of the agreements but, by contrast with other letters and printing on the back side, the disclaimer letters are not as dark, bold, set apart or eye catching as other letters on the back side of the agreement. The warranty disclaimer contained in paragraph 4 on the back side of the hardware agreement is in 7 point type and slightly darker print, although hardly bold face. In the software agreement the warranty disclaimer is" } ]

[ { "docid": "22137289", "title": "", "text": "award can be enforced as an alternative to, or can arise with respect to, the equitable remedy of seniority integration. The award is not cumulative, nor does it address a separate remedial concern. Rather, it serves as a substitute for the performance of an equitable remedy that cannot otherwise be enforced. See Van Waters, 913 F.2d at 741 (“if violated, [the seniority rights provided under the collective bargaining agreement] could be remedied by an award of damages rather than specific performance.”). We find support for the proposition that monetary awards are a viable alternative to the equitable remedy of seniority integration in wrongful discharge cases where we have enforced awards of monetary damages in lieu of reinstatement. Much like reinstatement, seniority integration is a “make whole” remedy, the purpose of which is to restore the employee to the economic status quo that would exist but for the employer’s conduct. See Franks v. Bowman Transp. Co., 424 U.S. 747, 766, 96 S.Ct. 1251, 1265, 47 L.Ed.2d 444 (1976). Although we have recognized that reinstatement is the preferred remedy to address cases of wrongful discharge, we have enforced monetary awards as a viable alternative where reinstatement is impractical. See Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985) (front pay is an appropriate alternative to reinstatement where the relationship between the parties may be so damaged by animosity that reinstatement is impracticable and the remedial purposes of the statute would be frustrated if front pay were not available as an alternative remedy); Goss v. Exxon Office Systems Co., 747 F.2d 885 (3d Cir.1984) (same); see also Ellis v. Ringgold School District, 832 F.2d 27 (3d Cir.1987) (reinstatement may be denied when animosity between the parties makes such remedy impracticable). Cf. Squires v. Bonser, 54 F.3d 168 (3d Cir.1995) (special circumstances indicating that tensions between the parties exceed those which normally accompany reinstatement or indicating “irreparable” animosity among the parties involved justifies denial of reinstatement). Similar to the conditions that can result from the enforcement of reinstatement, disruption to the work environment, irreparable damage to work relationships, and hostility and animosity are all" } ]

[ { "docid": "23153924", "title": "", "text": "to grant such legal or equitable relief as may be appropriate ... including without limitation judgments compelling employment, reinstatement or promotion....”29 U.S.C. § 626(b). In discriminatory discharge cases, the decision whether to order reinstatement is within the discretion of the trial court. Cancellier, 672 F.2d at 1319. Although reinstatement is the preferred remedy in these cases, it may not be feasible where the relationship is hostile or no position is available due to a reduction in force. Thorne, 802 F.2d at 1137; Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1167 (9th Cir.1984); Cancellier, 672 F.2d at 1319. Under such circumstances, an award of future damages or “front pay” in lieu of reinstatement furthers the remedial goals of the ADEA by returning the aggrieved party to the economic situation he would have enjoyed but for the defendant’s illegal conduct. See Pmdential Federal, 763 F.2d at 1173; Cancellier, 672 F.2d at 1319. Thus, front pay is an award of future lost earnings to make a victim of discrimination whole. Maxfield v. Sinclair Int’l, 766 F.2d 788, 795-96 (3d Cir.1985), cert. denied, _ U.S. _, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727-28 (2d Cir.1984). The jury in this case was instructed on the measure of damages for front pay. The district court explained that “Front pay is compensation for the loss of future salary and benefits.” Aside from this cursory definition, however, the jury was merely told that “If you find age discrimination ..., you may award front pay.” It is clear that front pay awards, like backpay awards, must be reduced by the amount plaintiff could earn using reasonable mitigation efforts. See Thorne, 802 F.2d at 1137. As the Third Circuit pointed out in Maxfield, 766 F.2d at 796, the plaintiffs duty to mitigate must serve as a control on front pay damage awards. See also Prudential Federal, 763 F.2d at 1173 (failure to mitigate may limit front pay award); Whittlesey, 742 F.2d at 728 (duty to mitigate significantly limits front pay). Thus, front pay is intended to be" }, { "docid": "22251768", "title": "", "text": "no unusual circumstances in favor of a discretionary denial of pre-judgment interest, we will reverse the district court’s denial of Starceski’s motion for pre-judgment interest and remand for a quantification of the pre-judgment interest due him. See Green v. USX Corp., 843 F.2d 1511, 1530 & n. 16 (3d Cir.1988). B. Reinstatement Starceski also contends that the district court erred in denying his request for reinstatement. We have held that the decision to grant reinstatement or its alternative, front pay, is within the sound discretion of the district court. Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3d Cir.1985) (“Since reinstatement is an equitable remedy, it is the district court that should decide whether reinstatement is feasible.”), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In determining whether to grant either reinstatement or front pay, we have suggested that district courts should take into consideration the ADEA’s purpose to make aggrieved plaintiffs whole “by restoring them to the position they would have been in had the discrimination never occurred.” Id. Although reinstatement “is the preferred remedy to avoid future lost earnings” because it is consistent with the ADEA’s make-whole philosophy, we have concluded that reinstatement is not feasible in cases where there “may be no position available at the time of judgment or the relationship between the parties may have been so damaged by animosity that reinstatement is impracticable.” Id. Here, we initially note that Starceski failed to object when the trial judge instructed the jury on front pay, even though he intended to make a motion for reinstatement. Starceski is not entitled to both reinstatement and front pay. In any event, the district court found that reinstatement was not a viable option due to the lack of available positions and given the animosity between the parties. We cannot say that finding is clearly erroneous. Moreover, on this record, we see no abuse of discretion in the district court’s decision to deny Starceski the remedy of reinstatement. “The district court was in a much better position [than us] to determine whether or not reinstatement was feasible" }, { "docid": "5605554", "title": "", "text": "v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657, 664 (M.D.Pa.1977) (“Prospective reinstatement is an equitable remedy. The requirements of the law of equitable remedies clearly applies [sic] to § 1983.), affd in part, rev’d in part on other grounds, 590 F.2d 470 (3d Cir.1978). Nevertheless, reinstatement is not available in all cases. “[A] court may deny reinstatement ‘when, for example, animosity between the parties makes such a remedy impracticable.’ ” Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993) (quoting Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987)). If plaintiff’s speech has caused such animosity and disruption that' reinstatement is no longer a practical remedy, then plaintiff has not “suffered [an] actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) (per curiam). If such is the case, we would lack jurisdiction over these claims because there would be no “actual case[ ] or controversy].” Id. “The requirement of ‘actual injury redress-able by the court’.... tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conductive to a realistic appreciation of the consequences of judi cial action.” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976)). Furthermore, the fact “[t]hat the dispute between the parties was very much alive when suit was filed ... cannot substitute for the actual case or controversy that an exercise of this [c]ourt’s jurisdiction requires.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 600, 98 L.Ed.2d 686 (1988). We turn to the issue of whether reinstatement is an available remedy because the resolution of this issue against plaintiff would moot plaintiffs claim to the extent that plaintiff seeks reinstatement." }, { "docid": "22251767", "title": "", "text": "335, 346 (3d Cir.1990); Blum v. Witco Chemical Corp., 829 F.2d 367, 382 (3d Cir.1987); Rick el v. C.I.R., 900 F.2d 655, 666 (3d Cir.1990). We have also recognized that the purpose of an award of pre-judgment interest is “‘to reimburse the claimant for the loss of the use of its investment or its funds from the time of the loss until judgment is entered.’” Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 259 (3d Cir.1986) (quoting Arco Pipeline Co. v. SS Trade Star, 693 F.2d 280, 281 (3d Cir.1982)). We.are unable to reconcile Thurston’s statement that liquidated damages are punitive with a denial of pre-judgment interest designed to compensate for loss of the time value of money. Thus, we are not persuaded by the reasoning of those courts of appeals which believe that Congress’s incorporation of some of the FLSA’s damage provisions into the ADEA was meant to preclude an award of damages for both willfulness and pre-judgment interest. Given this view of the law and the fact that Westinghouse-points to no unusual circumstances in favor of a discretionary denial of pre-judgment interest, we will reverse the district court’s denial of Starceski’s motion for pre-judgment interest and remand for a quantification of the pre-judgment interest due him. See Green v. USX Corp., 843 F.2d 1511, 1530 & n. 16 (3d Cir.1988). B. Reinstatement Starceski also contends that the district court erred in denying his request for reinstatement. We have held that the decision to grant reinstatement or its alternative, front pay, is within the sound discretion of the district court. Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3d Cir.1985) (“Since reinstatement is an equitable remedy, it is the district court that should decide whether reinstatement is feasible.”), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In determining whether to grant either reinstatement or front pay, we have suggested that district courts should take into consideration the ADEA’s purpose to make aggrieved plaintiffs whole “by restoring them to the position they would have been in had the discrimination never occurred.” Id. Although" }, { "docid": "19729891", "title": "", "text": "third party, to instate Kraemer. Although the Third Circuit has not specifically addressed the issue of “bumping” innocent employees to reinstate or instate the successful plaintiff in discrimination cases, the courts in this circuit have followed the principle that reinstatement is not feasible if the exact position or no comparable position is available. See Starceski 54 F.3d at 1103 (affirming district court’s denial of plaintiff’s motion for reinstatement reasoning that reinstatement was not feasible due to the lack of available positions and given the animosity between the parties); Zampino v. Supermarkets Gen. Corp., 821 F.Supp. 1067 (E.D.Pa.1993) (recognizing that although reinstatement was the preferred remedy in discrimination cases, reinstatement is not feasible where there are no comparable positions available). Neither the Starceski court nor the Zampino court required the defendant to bump an innocent employee to reinstate the plaintiff. Other circuit courts agree that instatement is not an appropriate remedy if it requires bumping or displacing an innocent employee in favor of the plaintiff who would have held the job but for illegal discrimination. See Spagnuolo v. Whirlpool Corp., 717 F.2d 114, 119-122 (4th Cir.1983) (although district court initially entered a judgment in accordance with the “rightful place” theory whereby the employee who suffered past discrimination will be given full seniority rights and permitted to obtain the next available vacancy by means of that seniority, district court erred in amending that judgement to require the defendant corporation to bump the innocent incumbent who held the position originally in dispute so that plaintiff could be reinstated); Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254 (5th Cir.1995) (district court did not abuse its discretion in denying reinstatement where there were no existing vacancies in school district and where reinstating plaintiff would require displacement of an existing employee); Deloach v. Delchamps, Inc., 897 F.2d 815, 822-23 (5th Cir.1990) (applying ADEA precedent to interpret the Louisiana Age Discrimination in Employment Act, court upheld district court’s order that reinstatement was not feasible because plaintiff had been replaced and reinstatement would disrupt the employment of others); Shore v. Federal Express Corp., 777" }, { "docid": "19729886", "title": "", "text": "of Religious Studies citing objections to the process by which' Cooper was selected and inappropriate considerations of age and sex by Professors Martin and Aronowicz. Professor Hopkins stated that Professor Martin selected Cooper because he did not “want to be the youngest person in the department” and Professor Aronowicz selected Cooper because she disagreed with Kraemer’s feminist-based methodology of religious history. Kraemer. filed this action against F & M alleging age discrimination in violation of the ADEA, sex discrimination in violation of Title VII of the CM Rights Act of 1964, 42 U.S.C. § 2000(e), as amended, and age and sex discrimination in violation of the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951-963 (1996). II. DISCUSSION A. INSTATEMENT OR FRONT PAY Although reinstatemenVinstatement (“instatement”) is the preferred remedy to avoid future lost earnings, the United States Court of Appeals for the Third Circuit has recognized that instatement may not be feasible in all cases. See Squires v. Bonser, 54 F.3d 168, 173 & n. 8 (3d Cir.1995); Maxfield v. Sinclair Int'l 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), appeal after remand, 877 F.2d 54 (3d Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Instatement is not feasible if the relationship between the parties has been so damaged by animosity as to make instatement impractical or if there is.no position available in which to instate the plaintiff at the time of the judgment. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir.1995); Maxfield, 766 F.2d at 796. The exact position which the successful .plaintiff was unlawfully denied or removed, from need not be available for instatement to be feasible, but a substantially comparable position must be available for the court to order instatement. See Sinclair v. Insurance Co. of North America, 609 F.Supp. 397, 400 (E.D.Pa.1984) (court awarded reinstatement to successful ADEA plaintiff where defendant agreed, to reinstate plaintiff in the event of an adverse verdict to a comparable position" }, { "docid": "19916020", "title": "", "text": "Donlin received greater compensation than she would have received had she been hired by Philips because she worked overtime hours in her new job and received a greater annual pay raise than the raises given by Philips. Id. The District Court’s undisputed factual findings at the first trial do not comport with this conclusion, however. Instead, they indicate that Donlin earned less in her new job, even taking into account her overtime compensation and pay raise. These facts supported a finding that the two jobs were not substantially equivalent. If the evidence on remand supports a similar finding, the District Court should again conclude as a matter of law that Donlin can only be made whole — as Title VII demands — if awarded sufficient back pay to make up the difference. 2. Front Pay Though back pay makes a plaintiff whole from the time of discrimination until trial, a plaintiffs injury may continue thereafter. Accordingly, courts may award front pay where a victim of employment discrimination will experience a loss of future earnings because she cannot be placed in the position she was unlawfully denied. See Maxfield, 766 F.2d at 795-97. Front pay is an alternative to the traditional equitable remedy of reinstatement, Squires v. Bonser, 54 F.3d 168, 176 (3d Cir.1995), which would be inappropriate where there is a likelihood of continuing disharmony between the parties or unavailable because no comparable position exists. See Blum v. Witco Chem. Corp., 829 F.2d 367, 374 (3d Cir.1987); Goss v. Exxon Office Sys. Co., 747 F.2d 885, 890 (3d Cir.1984). Because the award of front pay is discretionary, we review the District Court’s decision for abuse of discretion and will reverse only if we are left with a definite and firm conviction that a mistake has been committed. See In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir.1994). The jury recommended a front-pay award of $395,795 to cover the difference in Donlin’s salary and pension earnings for 25 years, adjusted to account for the probability of death and discounted to" }, { "docid": "15310537", "title": "", "text": "retaliatory firing of Feldman; that they fired him in order to conceal their own mismanagement at PHA; and that this conduct sank to the levels of conduct that justify imposition of punitive damages under both federal and Pennsylvania law. We conclude that both Paone and Saidel must pay the modest punitive damages the jury assessed against them. We have considered defendants’ remaining arguments and find them to be similarly without merit. CONCLUSION The judgment of the district court is affirmed. . See, e.g., Robinson, 982 F.2d at 899 (3d Cir.1993) (affirming district court's denial of reinstatement where evidence supported finding of lingering hostilities between plaintiff and his supervisors); Versarge v. Township of Clinton, 984 F.2d 1359, 1369 (3d Cir.1993) (holding reinstatement inappropriate \"because of the great animosity between plaintiff and the other volunteer firefighters”); Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir.1993) (upholding district court’s denial of plaintiffs’ request for reinstatement to former teaching positions on grounds that (1) school district and school building were very small; (2) record was filled with testimony regarding tense and hostile atmosphere at school between plaintiffs, individual defendants, and other teachers; and (3) friction that precipitated lawsuit would dog the school districts if plaintiffs were returned to their positions); Tennes v. Commonwealth of Mass. Dep’t of Revenue, 944 F.2d 372, 381 (7th Cir.1991) (affirming denial of reinstatement where there was no reason to believe that parties would enjoy a productive and amicable working relationship); Spulak v. K Mart Corp., 894 F.2d 1150, 1157 (10th Cir.1990) (affirming award of front pay in lieu of reinstatement where record supported Spulak’s assertion that K Mart's investigation of Spulak's alleged illegal activities “left his employees with the impression that he was guilty of wrongdoing, rendering him unable to function amicably and productively in his former supervisory capacity',” and where the level of animosity between Spulak and K Mart only increased as a result of the litigation). GARTH, Circuit Judge, concurring in part and dissenting in part: While I agree with the majority’s conclusion that Feldman’s actions as Director of Internal Audit at the Philadelphia" }, { "docid": "19729887", "title": "", "text": "796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), appeal after remand, 877 F.2d 54 (3d Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Instatement is not feasible if the relationship between the parties has been so damaged by animosity as to make instatement impractical or if there is.no position available in which to instate the plaintiff at the time of the judgment. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir.1995); Maxfield, 766 F.2d at 796. The exact position which the successful .plaintiff was unlawfully denied or removed, from need not be available for instatement to be feasible, but a substantially comparable position must be available for the court to order instatement. See Sinclair v. Insurance Co. of North America, 609 F.Supp. 397, 400 (E.D.Pa.1984) (court awarded reinstatement to successful ADEA plaintiff where defendant agreed, to reinstate plaintiff in the event of an adverse verdict to a comparable position for which plaintiff is qualified and plaintiff stated he would accept, reinstatement to comparable position), aff'd, 782 F.2d 1029 (3d Cir.1986). If instatement is not feasible, the court should award the alternative remedy of front pay. Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 604 F.Supp. 962, 966 (E.D.Pa. 1985). In determining whether to grant in-statement, the court should take into consideration the ADEA’s purpose to make victims of discrimination whole by restoring them to the economic position they would have occupied but for the unlawful conduct of their employer. See Starceski 54 F.3d at 1103; Maxfield, 766 F.2d at 796. The decision to grant reinstatement or its alternative, front pay, is within the discretion of the district court. See Maxfield, 766 F.2d at 796 (“Since reinstatement is an equitable remedy it is the district court that should decide whether reinstatement is feasible.”). Kraemer argues that instatement is the proper remedy in this case and that there are several ways F & M can instate her. First, Kraemer argues that she can fill the tenure-track" }, { "docid": "5605553", "title": "", "text": "on the basis of undisputed evidence, we conclude, as did the district court, that the interests of the Hose Company outweigh the limited interests of plaintiff and the public in plaintiffs speech; Accordingly, plaintiffs speech is not protected by the First Amendment. 2. Overbreadth We have concluded that plaintiffs speech was not protected by the First Amendment. Accordingly, plaintiff is not in a position to argue that the provision in the Hose Company constitution under which he was expelled is unconstitutionally overbroad as applied to his speech. Nevertheless, plaintiff seeks to challenge that provision as overbroad on its face. A facial overbreadth challenge allows a plaintiff “to benefit from the [provision’s] unlawful application to someone else.” Board of Trustees v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028, 3036, 106 L.Ed.2d 388 (1989). The remedies sought by plaintiff for this alleged constitutional violation are reinstatement and a declaratory judgment that the provision is overbroad. Plaintiff seeks no monetary relief. See supra, note 1. Reinstatement is an equitable remedy under 42 U.S.C. § 1983. See Skehan v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657, 664 (M.D.Pa.1977) (“Prospective reinstatement is an equitable remedy. The requirements of the law of equitable remedies clearly applies [sic] to § 1983.), affd in part, rev’d in part on other grounds, 590 F.2d 470 (3d Cir.1978). Nevertheless, reinstatement is not available in all cases. “[A] court may deny reinstatement ‘when, for example, animosity between the parties makes such a remedy impracticable.’ ” Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993) (quoting Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987)). If plaintiff’s speech has caused such animosity and disruption that' reinstatement is no longer a practical remedy, then plaintiff has not “suffered [an] actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) (per curiam). If such is the case, we would lack jurisdiction over these claims because there would be no “actual case[ ] or controversy].” Id. “The" }, { "docid": "23352713", "title": "", "text": "the unlawful deprivation of the opportunity to earn wages through wrongful termination. The remedy, correspondingly, consists of restoring victims, through backpay awards and injunctive relief, to the wage and employment positions they would have occupied absent the unlawful discrimination. Id. (citations omitted). In Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 719, 98 S.Ct. 1370, 1381, 55 L.Ed.2d 657 (1978), the Court stated that the “Albemarle presumption in favor of retroactive liability can seldom be overcome.” Title VII contemplates that a corporation may be liable for dismissing an employee when its motives contain a mixture of legitimate and illegitimate reasons. Price Waterhouse v. Hopkins, 490 U.S. 228, 237-38, 109 S.Ct. 1775, 1783-84, 104 L.Ed.2d 268 (1989). Allowing trial courts to reduce a backpay award to account for the legitimate considerations would be extremely speculative and would frustrate the “make whole” purpose of Title VII. See Albemarle, 422 U.S. at 421, 95 S.Ct. at 2373. Reinstatement Finally, Robinson argues the trial judge abused his discretion in declining to reinstate Robinson to a position with SEPTA. Title VII provides that the court may order “reinstatement ... with or without back pay ..., or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g). Although reinstatement is the preferred remedy to avoid future lost earnings, a court may deny reinstatement “when, for example, animosity between the parties makes such a remedy impracticable.” Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). The trial judge concluded that the “demonstrated irreparable conflict” between Robinson and SEPTA supervisors made reinstatement impracticable. He cited SEPTA’s complaints about Robinson and Robinson’s own testimony referring to SEPTA managers as South African dogs. Given hostilities such as those, the trial judge was well within his discretion in refusing to reinstate Robinson. Conclusion For the above reasons, the judgment of the district court is affirmed in part, reversed" }, { "docid": "15310544", "title": "", "text": "exercise of discretion, we consider not only the reasons proffered by the district court for its determination, but also whether those reasons find support in the record. It is well settled that reinstatement is the preferred remedy to avoid future lost earnings. Maxfield, 766 F.2d at 796; see also James v. Sears, Roebuck & Co., 21 F.3d 989, 997 (10th Cir.1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 678 (7th Cir.1993); Roush v. KFC Nat’l Management Co., 10 F.3d 392, 398 (6th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994); Brunnemann v. Terra Int'l Inc., 975 F.2d 175, 180 (5th Cir.1992); Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1438 (11th Cir.1991); Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.1991), cert. denied, 502 U.S. 963, 112 S.Ct. 429, 116 L.Ed.2d 449 (1991); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1346 (9th Cir.1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 870 (1988). Only when the evidence supports a judge’s decision that reinstatement is not feasible, may he award front pay in lieu of reinstatement. Reinstatement may not be deemed feasible (1) where the relationship between the parties has been so damaged by animosity as to make reinstatement impracticable, Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993); Witco Chem. Corp., 829 F.2d at 373-74; Maxfield, 766 F.2d at 796; or (2) where no comparable position is available to which the claimant can be reinstated. Witco Chem. Corp., 829 F.2d at 374; Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984). A. I believe that the record simply does not support the district court’s finding that substantial animosity had developed between Feldman and PHA — as opposed to the animosity that had evolved between Feldman, on the one hand, and Paone and Saidel on the other. Nor has the majority identified any such evidence. Speculation that Saidel might, in the future, be re-elected to the position of city comptroller and, in that capacity, be permitted to appoint persons to the Board" }, { "docid": "11011642", "title": "", "text": "entitled to any back pay. We turn first to the district court’s order awarding Plaintiff certain back pay. A. The Back Pay Award If a district court finds that an employer has engaged in an unlawful employment practice, Title VII authorizes, inter alia, a back pay award. See 42 U.S.C. § 2000e-5(g)(l); see also Loeffler v. Frank, 486 U.S. 549, 558, 108 S.Ct. 1965, 1971, 100 L.Ed.2d 549 (1988). As explained by the Loeffler court, the back pay award authorized by Title VII “is a manifestation of Congress’ intent to make ‘persons whole for injuries suffered through past discrimination.’” Id. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975)); see Squires v. Bonser, 54 F.3d 168, 172 (3d Cir.1995). Despite a presumption in favor of a back pay award, see Albemarle Paper Co., 422 U.S. at 421, 95 S.Ct. at 2373, successful Title VII claimants have a statutory duty to mitigate damages. See Robinson v. SEPTA, Red Arrow, 982 F.2d 892, 897 (3d Cir.1993). 1. Plaintiffs Duty to Mitigate Damages A successful claimant’s duty to mitigate damages is found in Title VII: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g)(l); see Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 29 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Although the statutory duty to mitigate damages is placed on a Title VII plaintiff, the employer has the burden of proving a failure to mitigate. See Robinson, 982 F.2d at 897; Anastasio v. Schering Corp., 838 F.2d 701, 707-08 (3d Cir.1988). To meet its burden, an employer must demonstrate that 1) substantially equivalent work was available, and 2) the Title VII claimant did not exercise reasonable diligence to obtain the employment. See id. at 708. Whether or not a claimant has met his duty to mitigate damages is a determination of fact, which is subject to the clearly erroneous standard of review. See Robinson, 982 F.2d at" }, { "docid": "19916021", "title": "", "text": "she cannot be placed in the position she was unlawfully denied. See Maxfield, 766 F.2d at 795-97. Front pay is an alternative to the traditional equitable remedy of reinstatement, Squires v. Bonser, 54 F.3d 168, 176 (3d Cir.1995), which would be inappropriate where there is a likelihood of continuing disharmony between the parties or unavailable because no comparable position exists. See Blum v. Witco Chem. Corp., 829 F.2d 367, 374 (3d Cir.1987); Goss v. Exxon Office Sys. Co., 747 F.2d 885, 890 (3d Cir.1984). Because the award of front pay is discretionary, we review the District Court’s decision for abuse of discretion and will reverse only if we are left with a definite and firm conviction that a mistake has been committed. See In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 832 (3d Cir.1994). The jury recommended a front-pay award of $395,795 to cover the difference in Donlin’s salary and pension earnings for 25 years, adjusted to account for the probability of death and discounted to present value. The District Court modified that award, limiting front pay damages to 10 years, which totaled $101,800. Despite this reduction, Philips asserts that the District Court’s award of front pay was erroneous in two respects. First, Philips claims that Donlin should not be entitled to front pay because she mitigated her damages by reestablishing herself in the workforce before trial. Philips cites Ford Motor for the proposition that damages are inappropriate where they “would catapult [the plaintiff] into a better position than they would have enjoyed in the absence of discrimination.” 458 U.S. at 234, 102 S.Ct. 3057. As we have explained, however, the District Court found that Donlin was not in the same position she would have been in had Philips hired her as a full-time employee. Instead, the District Court concluded that her salary would have been higher had she been hired and remained at Philips. When a defendant’s front pay objection is predicated upon the same objections regarding mitigation of damages which we have rejected with regard to back pay, we" }, { "docid": "17558343", "title": "", "text": "see Selgas v. American Airlines, Inc., 104 F.3d 9, 13 (1st Cir.1997), and, given its ability to directly observe the litigants, it is in a far better position than an appeals court to judge the quality of their relationship, an important factor in determining the viability of reinstatement. See Wildman, 771 F.2d at 615. On appeal, an order denying reinstatement will be disturbed only when the reviewing court is left “with a definite and firm conviction that a mistake has been made.” Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1201 (7th Cir.1989). The district court based its decision on the considerable antipathy Airborne’s top management held for Kelley, antipathy that the district court found went beyond the “animosity engendered by th[e] litigation.” As the district court explained, Brazier disliked Kelley prior to the litigation; the other management staff had effectively vilified Kelley, which completely undermined his value as a manager; and Kelley’s supervisor would be the man who had signed his termination letter—a termination the court described as “deliberately manufactured” without restraint. Further, the district court did not trust Airborne’s reinstatement offer or their intentions. The court described the motion asking the court to reinstate Kelley as “just another strategic move” and found that the proposed “at-large” position was indefinite and “make-work.” The district court thus expressed deep concerns in its determination that Kelley’s reinstatement to Airborne was impracticable. Given these stated reasons, we find the re fusal to order reinstatement well within the court’s discretion and amply supported by the record. See Maxfield v. Sinclair Intern., 766 F.2d 788, 795 (3d Cir.1985) (noting that reinstatement may be inappropriate if animosity has damaged the relationship between the parties); Cancellier v. Federated Dep’t Stores, 672 F.2d 1312 (9th Cir.1982) (similar). B. The Front Pay Instruction Airborne next contends that the district court incorrectly instructed the jury on how to calculate front pay damages. Within federal employment discrimination law, front pay is generally an equitable remedy awarded by the court, see Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir.1995), while, under ch. 151B, the jury awards front pay, see Handrahan," }, { "docid": "17558344", "title": "", "text": "district court did not trust Airborne’s reinstatement offer or their intentions. The court described the motion asking the court to reinstate Kelley as “just another strategic move” and found that the proposed “at-large” position was indefinite and “make-work.” The district court thus expressed deep concerns in its determination that Kelley’s reinstatement to Airborne was impracticable. Given these stated reasons, we find the re fusal to order reinstatement well within the court’s discretion and amply supported by the record. See Maxfield v. Sinclair Intern., 766 F.2d 788, 795 (3d Cir.1985) (noting that reinstatement may be inappropriate if animosity has damaged the relationship between the parties); Cancellier v. Federated Dep’t Stores, 672 F.2d 1312 (9th Cir.1982) (similar). B. The Front Pay Instruction Airborne next contends that the district court incorrectly instructed the jury on how to calculate front pay damages. Within federal employment discrimination law, front pay is generally an equitable remedy awarded by the court, see Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir.1995), while, under ch. 151B, the jury awards front pay, see Handrahan, 680 N.E.2d at 576. The district court thus submitted the issue of front pay to the jury. Airborne argues that, due to the district court’s inadequate instructions on how the jury was to calculate front pay, the award should be vacated or, in the alternative, remanded for a further hearing. We disagree. “Our principal focus in reviewing jury instructions is to determine whether they tended to confuse or mislead the jury on the controlling issues.” Service Merchandise Co., Inc. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir.1983). We look to state law governing the award of front pay damages to determine if the jury charge was proper. See DaSilva v. American Brands, Inc., 845 F.2d 356, 362 (1st Cir.1988). In Massachusetts, front pay is considered a form of compensatory prospective damages, akin to future damages in the tort context. See Conway, 523 N.E.2d at 256-57. Massachusetts law requires that front pay awards not be speculative, that they be causally related to the wrongdoing, and that the plaintiff not be made more than whole. See" }, { "docid": "23352714", "title": "", "text": "position with SEPTA. Title VII provides that the court may order “reinstatement ... with or without back pay ..., or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g). Although reinstatement is the preferred remedy to avoid future lost earnings, a court may deny reinstatement “when, for example, animosity between the parties makes such a remedy impracticable.” Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). The trial judge concluded that the “demonstrated irreparable conflict” between Robinson and SEPTA supervisors made reinstatement impracticable. He cited SEPTA’s complaints about Robinson and Robinson’s own testimony referring to SEPTA managers as South African dogs. Given hostilities such as those, the trial judge was well within his discretion in refusing to reinstate Robinson. Conclusion For the above reasons, the judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. On remand the district court should determine under the facts of the case whether prejudgment interest should be granted and should reinstate plaintiffs award it had reduced for income tax and equitable reasons. . In a retaliatory discharge claim under Title VII, a successful plaintiff must show that (1) he was engaged in a protected activity; (2) he was discharged after or contemporaneously with that activity; and (3) there was a causal link between the protected activity and the discharge. Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir.), cert. denied, — U.S. —, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990). . Although the record contains several examples of Robinson’s harassment, these can be illustrated by one incident in early April of 1984. Robinson missed a day of work due to illness. When he returned to work the next day, Robinson" }, { "docid": "15310528", "title": "", "text": "constitutional rights. Defendants also argue that the district court committed reversible error by failing to conduct, on the record, particularized fact-finding and balancing under Pickering. They further contend that the district court inappropriately submitted to the jury all of Feldman’s statements and reports before first determining for itself which, if any, were protected. Defendants, however, have failed to preserve these issues for appeal. They did not except to the court’s jury instruction concerning Pickering, nor did they take any pre-verdict exception to the district court’s failure to make specific factual findings on the record. Even if defendants had properly preserved the record, we would still affirm. Although the district court did not perform the Pickering balancing test in precisely the fashion that some cases suggest is appropriate, it is apparent from the district court’s memorandum and order denying defendants’ motion for judgment notwithstanding the verdict, that it had considered all of Feld-man’s speech to be constitutionally protected under Pickering. Consequently, we see no prejudicial error in the court’s having first submitted the same issue to the jury, which arrived at the same conclusion. B. Front Pay Versus Reinstatement PHA argues that the district court erred by permitting an award of front pay instead of ordering Feldman reinstated at PHA. The equitable remedy of reinstatement is available for discharges that violate 42 U.S.C. §.1983, see Versarge, 984 F.2d at 1368, and reinstatement is the preferred remedy to cover the loss of future earnings. See Blum v. Witco Chem. Corp., 829 F.2d 367, 373-74 (3d Cir.1987). However, reinstatement is not the exclusive remedy, because it is not always feasible, such as when there exists “irreparable animosity between the. parties”. Id. at 374; see also Versarge, 984 F.2d at 1368. When reinstatement is not appropriate, front pay is the alternate reme dy. See Maxfield v. Sinclair International, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). Guided by the particular circumstances of a case, the district court has broad discretion in determining whether reinstatement is appropriate, and its determination is reviewed under an abuse-of-diseretion" }, { "docid": "15310542", "title": "", "text": "reinstatement was not a viable remedy as a result of continuing animosity between him and PHA Immediately before closing arguments, the district court granted Feldman’s motion. Ultimately, the jury awarded Feldman $500,000 in front pay in lieu of reinstatement: In a post-trial motion, PHA, in addition to argu ing that the front pay award was improper and excessive, also argued that the district court had erred in ruling that reinstatement was inappropriate. The district court rejected PHA’s arguments. In particular, the district court reiterated its view that reinstatement was not a feasible remedy because “[ijrreparable distrust and animosity [had] developed between Feldman and PHA as a result of the events prior to his termination, the termination itself, and the litigation that followed in its wake.” Dist. Ct. Order of 9/16/93 at 3. The district court noted that: (1) Feldman had been fired for insubordination; (2) Feldman’s ability to function as an auditor at PHA had been irrevocably impaired by his lawsuit; and (3) although Paone and Saidel no longer worked at PHA, “many of the people, with whom or for whom Feldman would work if he were to return, worked at PHA prior to his termination.” Dist. Ct. Order of 9/16/93 at 5. In my opinion, the district court abused its discretion when it refused to reinstate Feld-man. Ill In employment discrimination suits, there are two alternative remedies available to compensate a claimant for future lost earnings: reinstatement or front pay. The determination of which remedy is appropriate is left to the discretion of the district court judge. Blum v. Witco Chem. Corp., 829 F.2d 367, 374 n. 4 (3d Cir.1987); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). Only after the judge determines that reinstatement is not feasible, and that front pay is appropriate, does the jury calculate a front pay award. Accordingly, when we review a district court’s order to reinstate, or to deny reinstatement, we are not reviewing a jury determination. Rather, we are reviewing a judge’s ruling. In reviewing the district court’s" }, { "docid": "15310545", "title": "", "text": "that reinstatement is not feasible, may he award front pay in lieu of reinstatement. Reinstatement may not be deemed feasible (1) where the relationship between the parties has been so damaged by animosity as to make reinstatement impracticable, Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993); Witco Chem. Corp., 829 F.2d at 373-74; Maxfield, 766 F.2d at 796; or (2) where no comparable position is available to which the claimant can be reinstated. Witco Chem. Corp., 829 F.2d at 374; Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984). A. I believe that the record simply does not support the district court’s finding that substantial animosity had developed between Feldman and PHA — as opposed to the animosity that had evolved between Feldman, on the one hand, and Paone and Saidel on the other. Nor has the majority identified any such evidence. Speculation that Saidel might, in the future, be re-elected to the position of city comptroller and, in that capacity, be permitted to appoint persons to the Board of Commissioners, which in turn governs PHA, simply is too remote to support an award of front pay in lieu of reinstatement and is no substitute for evidence. Accordingly, in my opinion, the district court’s finding of fact that Feldman could not enjoy a productive working relationship with PHA were he to be reinstated, is clearly erroneous. Unlike almost all eases in which reinstatement is denied, here there is no record evidence of lingering hostility between Feldman and any individual still working at PHA. While some PHA employees testified at trial, their testimony did not reveal any animus towards Feldman. See Bingman v. Nothin & Co., 937 F.2d 553, 558 (10th Cir.1991) (affirming district court’s finding that work place would not be unduly hostile where “all persons involved in plaintiffs termination testified, and none showed animosity toward him because of [his] lawsuit”). Most importantly, Paone and Saidel no longer work for the Philadelphia Housing Authority. See, e.g., Rodgers, 12 F.3d at 678 (affirming district court’s award of reinstatement where supervisor, whose racial comments had been" } ]

[ { "docid": "7073577", "title": "", "text": "action turns on the merits of the action itself. Section 301(a) reads: “Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.” This prohibition is tempered, however, by a self-referential host of exceptions that allow the discharge. of many pollutants once a polluter has complied with the regulatory program of the CWA. The exception relevant to the instant matter is contained in Section 402, which outlines the NPDES, 33 U.S.C. § 1342(a), and specifies the requirements for suspending the national system with the submission of an approved state program, 33 U.S.C. § 1342(b), (c). Section 402(k) contains the so-called “shield provision,” 33 U.S.C. § 1342(k), which defines compliance with a NPDES or SPDES permit as compliance with Section 301 for the pur-' poses of the CWA’s enforcement provisions. The Supreme Court has noted that “The purpose of [Section 402(k) ] seems to be ... to relieve [permit holders] of having to litigate in an enforcement action the question whether their permits are sufficiently strict.” E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 n. 28, 97 S.Ct. 965, 980 n. 28, 51 L.Ed.2d 204 (1977). Atlantic States’ view of the regulatory framework stands that scheme on its head. Atlantic States treats permits as establishing limited permission for the discharge of identified pollutants and a prohibition on the discharge of unidentified pollutants. Viewing the regulatory scheme as a whole, however, it is clear that the permit is intended to identify and limit the most harmful pollutants while leaving the control of the vast number of other pollutants to disclosure requirements. Once within the NPDES or SPDES scheme, therefore, polluters may discharge pollutants not specifically listed in their permits so long as they comply with the appropriate reporting requirements and abide by any new limitations when imposed on such pollutants. The EPA lists tens of thousands of different chemical substances in the Toxic Substances Control Act Chemical Substance Inventory pursuant to . 15 U.S.C. § 2607(b) (1988). However," } ]

[ { "docid": "12438371", "title": "", "text": "these discharges fall within the scope of discharges authorized by Defendants’ existing permit. A discharge in violation of the CWA is ordinarily a strict liability offense. An NPDES permit, while placing limits on the pollutants that may be discharged, may also protect the permit holder from strict liability for unauthorized discharges through what is known as the “permit shield” defense, codified at 33 U.S.C. § 1342(k). Section 1342(k) provides that “Compliance with a permit issued pursuant to this section shall be deemed compliance” with various sections of the CWA, including the provisions prohibiting unpermitted discharges. Whether the permit shield defense applies necessarily depends on the scope of the permit. The Fourth Circuit’s decision in Piney Run Preservation Association v. County Commissioners of Carroll County is the seminal ease addressing the scope of the CWA’s permit shield provision. In interpreting this provision, the Fourth Circuit applied the Supreme Court’s two-part Chevron analysis. At the first step, the court determined that the text of the permit shield provision was ambiguous. At the second step, the court determined that EPA’s Environmental Appeals Board had already reasonably interpreted the provision to apply to “pollutants that are not listed in [the] permit as long as [the party] only discharges pollutants that have been adequately disclosed to the permitting authority.” In other words, although a permit holder “is liable for any discharges not in compliance with its permit,” the court recognized that EPA intended compliance to be “a broader concept than merely obeying the express restrictions set forth on the face of the NPDES permit.” Accordingly, any discharge that has been adequately disclosed to the permitting authority, and is not expressly prohibited by the permit, is considered to be within the scope of the permit’s protection. With these principles in mind, the Court turns to the permit and coal discharges at issue in this case. The Seward Facility’s General Permit is a general, non-facility-specific permit that authorizes stormwater discharges for a variety of industrial operations. The General Permit expressly authorizes the permit holder to discharge several categories of “stormwater,” which is defined as “storm water runoff," }, { "docid": "18443324", "title": "", "text": "Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). Discharge of pollutants into the waters of the United States from a point source without an NPDES permit, or in violation of the terms of an NPDES permit, is a violation of the CWA. 33 U.S.C. §§ 1311(a), 1342(a), 1365(f)(6). 351. “NPDES permits impose, limitations on the discharge of pollutants, and establish related monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation’s waters.” Friends of the Earth, Inc, v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “Noncompliance with a permit constitutes a violation of the Act.” Id,; see 40 C.F.R. § 122.41(a) (2015). 352. As the system is currently designed, “[t]he [EPA] initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (citing 33 U.S.C. §§ 1251(b), 1342). In December of 1977, the EPA authorized the State of Tennessee to issue some types of NPDES permits, which the State grants and enforces through TDEC. See 56 Fed. Reg. 21,376 (1991). In 1986, the EPA expanded that authorization to include the authority to issue and oversee permits for federal facilities such as the Gallatin Plant. 51 Fed. Reg. 32,834 (1986). B. The Permit Shield 353. The “permit shield” provision of the CWA provides that “[c]ompliance with a permit issued pursuant to [the NPDES] shall be deemed compliance” with the relevant portions of the CWA. 33 U.S.C. § 1342(k). The purpose of the permit shield is “to' relieve [permit holders] of having to litigate in an enforcement action the question whether them permits . are sufficiently strict.” ICG Hazard, 781 F.3d at 285 (quoting E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 n.28, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977)). 354. The Sixth Circuit has adopted a two-pronged analysis" }, { "docid": "23684275", "title": "", "text": "those pollutants that, in the words of the Second Circuit and EPA, it “reasonably anticipates” could damage the environmental integrity of the affected waterway. Id. at *11; Atlantic States Legal Found., 12 F.3d at 358 (internal citations omitted). Thus, as long as a permit holder complies with the CWA’s reporting and disclosure requirements, it may discharge pollutants not expressly mentioned in the permit. Ketchikan, 1998 WL 284964 at *11. The only other limitation on the permit holder’s ability to discharge such pollutants is that the discharges must be reasonably anticipated by, or within the reasonable contemplation of, the permitting authority. Id. at *11. Because the permitting scheme is dependent on the permitting authority being able to judge whether the discharge of a particular pollutant constitutes a significant threat to the environment, discharges not within the reasonable contemplation of the permitting authority during the permit application process, whether spills or otherwise, do not come within the protection of the permit shield. We see the EPA’s interpretation of the permit shield as a rational construction of the CWA’s statutory ambiguity; as such, we deem it “reasonable” within the meaning of a Chevron analysis. See Chemical Mfrs., 470 U.S. at 125, 105 S.Ct. 1102. Therefore, because the CWA provision in question, § 1342(k), is ambiguous, and because the EPA’s interpretation of this provision is reasonable, we must defer under Chevron to the EPA’s interpretation of the scope of an NPDES permit. Thus, the scope of the permit shield defense is relatively straightforward. An NPDES permit holder is shielded from CWA liability for discharges in compliance with its permit, and is liable for any discharges not in compliance with its permit. As the EPA has determined, however, compliance is a broader concept than merely obeying the express restrictions set forth on the face of the NPDES permit; all discharges adequately disclosed to the permitting authority are within the scope of the permit’s protection. Having examined the nature of liability under the CWA, we turn to whether, in this case, the Plant’s discharge of heat during the period in question was in violation of its" }, { "docid": "12438413", "title": "", "text": "at 266, 269; see also 33 U.S.C. § 1342(k). . Id. at 259, 268-69 (citing Ketchikan, 7 E.A.D. 605, 1998 WL 284964). . See Northwest Environmental Advocates v. City of Portland, 56 F.3d 979, 982 (9th Cir. 1995); Piney Run, 268 F.3d at 269. . See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir.2009) (each part of a contract is read with reference to the whole); Piney Run, 268 F.3d at 270 (an NPDES permit provision should be examined in the context of the entire permit). . Piney Run, 268 F.3d at 270. . Dkt. 120-1 at 6. . See Dkt. 120-1 at 7-8. . Dkt. 120-1 at 20. . Dkt. 127 at 13-15, 19; Dkt. 139 at 10. . See, e.g., Dkt. 140 at 10-11. . See 268 F.3d 255. . Id. at 259-62. . Id. at 260-61. . Id. at 269. . Id. at 270. . Id. . Id. at 270-71. . Id. . See Dkt. 120-1; see also Dkt. 121-5 (EPA letter describing the general permit as a prewritten document not prepared specifically for the Seward Facility). . See generally Dkt. 120-1. . See Dkt. 120-1 at 47-139. . See Dkt. 121-9. . See Dkt. 120-1 at 144; see also 63 Fed. Reg. 52430, at *52443 (September 30, 1998). . 63 Fed.Reg. 52430, at *52443. . See Dkt. 120-1 at 144. However, the regulatory agency has the authority, if it wishes, to establish additional requirements for Sector AD facilities. Id. . Dkt. 120-1 at 47. . Id. . Dkt. 120-1 at 51. . See Dkt. 120-1 at 61, 71, 87, 91, 97, 110. . Plaintiffs also cite 40 C.F.R. § 122.28(2) to argue that the coal discharges cannot be allowed under the General Permit because EPA regulations do not authorize permitting authorities to cover both stormwater and nonstormwater discharges under the same permit. Dkt. 127 at 15. This argument is contrary to the plain language of the cited regulation, which provides, in relevant part, that a general permit may regulate \"one or more categories or subcategories of discharges ... where the sources within a" }, { "docid": "5762399", "title": "", "text": "by any person’ unless done in compliance with some provision of the Act.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) (quoting 33 U.S.C. § 1311(a)). One such provision, codified at 33 U.S.C. § 1342, “established a National Pollution Discharge Elimination System [NPDES] ... that is designed to prevent harmful discharges into the Nation’s waters.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). “Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters.” Miccosukee Tribe, 541 U.S. at 102, 124 S.Ct. 1537. “The Environmental Protection Agency [ ] initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials. If authority is transferred, then state officials ... have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.” Nat’l Ass’n of Home Builders, 551 U.S. at 650, 127 S.Ct. 2518 (citations omitted). The State of Maryland is authorized to administer the NPDES program and does so through the MDE. See Piney Run Pres. Ass’n v. Cnty. Comm’rs (“Piney Run I’’), 268 F.3d 255, 265 (4th Cir.2001). With regard to enforcement of the CWA, “[although the primary responsibility ... rests with the state and federal governments, private citizens provide a second level of enforcement and can serve as a check to ensure the state and federal governments are diligent in prosecuting Clean Water Act violations.” Piney Run Pres. Ass’n v. Cnty. Comm’rs (“Piney Run II”), 523 F.3d 453, 456 (4th Cir.2008) (citing Sierra Club v. Hamilton Cnty. Bd. of Cnty. Comm’rs, 504 F.3d 634, 637 (6th Cir.2007)). Specifically, Section 505(a) of the CWA, 33 U.S.C. § 1365(a), authorizes citizens “to bring suit against any NPDES permit holder who has allegedly violated its permit.” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir.2000) (en banc). This" }, { "docid": "18443326", "title": "", "text": "for determining whether the permit shield will apply to the discharges alleged in a particular action: “[fjirst, the permit holder must' comply with the CWA’s reporting and disclosure requirements”; and, “[s]econd, ,.. the discharges must be within the permitting authority’s ‘reasonable contemplation.’” Id. (quoting Piney Run, 268 F.3d at 268). 355. The question of “reasonable contemplation” focuses in particular on whether the alleged discharges were “within the reasonable contemplation of the permitting authority during the permit application process.” Id. (quoting Piney Run, 268 F.3d at 267) (emphasis added). The question of reasonable contemplation is closely tied to a review of what the permittee itself disclosed, because “the scope of the permit as well.as the discharge limitations contained therein are based largely on information provided by the permit applicant.” In Re Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964, at ”10 (E.P.A. May 15, 1998). 356. As this Court held on September 9, 2016, “the Court should evaluate every feature of an alleged violation to determine if the relevant discharge or possibility \"thereof was adequately disclosed and reasonably contemplated,” including “the pollutants at issue ... the location of discharge, its magnitude, or any other relevant trait.” (Doc. No. 139 at 30.) 357. In its September 9, 2016 ruling, the Court concluded that TVA may be able to rely on the permit shield doctrine with regard to seeps from the Ash Pond Complex if the “specific seeps [at issue] were only of the type contemplated by the [NPDES] permit, and that the seeps’ detection, monitoring, reporting, disclosure, and, if necessary, remediation, were handled in full compliance with the permit.” (Id. at 32.) C. Groundwater under the CWA 358. The CWA “prohibits the discharge of pollutants into ‘navigable waters’ except as in compliance with the Act’s provisions.” Cape Fear River Watch, Inc, v. Duke Energy Progress, Inc., 25 F.Supp.3d 798, 805 (E.D.N.C. 2014) (citing 33 U.S.C. §§ 1311(a), 1362(12)(A)). “The term ‘navigable waters’ means the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). It is undisputed that the Cumberland River is a water of the United States" }, { "docid": "8071943", "title": "", "text": "law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e) (emphasis in Matsushita)). Before turning to the issues in dispute on this motion, I shall relate the underlying issues of law and fact upon which the parties appear to agree. The Clean Water Act was passed in 1972 to “restore and maintain the chemical, physical and biological integrity of the nation’s waters.” 33 U.S.C. § 1251(a). To meet this goal, the Act required, inter alia, that persons discharging effluents from point sources into navigable waters abide by certain effluent limitations. The limitations were designed to be attainable by persons who made use of pollution-control technologies. See S.Rep. No. 414, 92nd Cong., 1st Sess. 42 (1971), reprinted in 1972 U.S.Code Cong. & Admin.News 3668; see also E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 126-129, 97 S.Ct. 965, 974-76, 51 L.Ed.2d 204 (1977); EPA v. Cal. ex rel. State Water Resources Control Board, 426 U.S. 200, 204-5, 96 S.Ct. 2022, 2024-25, 48 L.Ed.2d 578 (1976). Effluent limitations are imposed upon individual dischargers through the issuance of NPDES permits by the EPA or a designated state agency. No discharges are allowed without a permit; with a permit, a discharger may discharge only up to the levels of effluent limitation set out in the permit, and must engage in self-monitoring practices and file discharge monitoring reports (“DMR’s”) in order to aid the EPA and state agencies in enforcing the permit limitations. See 33 U.S.C. §§ 1311(a), 1311(b), 1318(a), 1342. Enforcement of NPDES permit limitations may be had in part by the prosecution of federal civil actions for monetary penalties and injunctive relief. See 33 U.S. C. § 1319(a)(3), 1319(b), and 1319(d); see also EPA v. California ex rel. State Water Resources Control Board, 426 U.S. at 205, 96 S.Ct. at 2025. In an enforcement action, a defendant’s DMR’s constitute admissions regarding the levels of effluent that the defendant has discharged. If the DMR’s show that the defendant has exceeded its NPDES permit limitations, then permit violations" }, { "docid": "12438412", "title": "", "text": "904 F.Supp. 1098, 1105 (D.Haw. 1994). . See Piney Run Pres. Assoc. v. Cnty. Commis. of Caroll Cnty., Md., 268 F.3d 255, 267 (4th Cir.2001). . Id. . Id. at 266 (applying Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). . Id. at 267 (citing Atlantic States Legal Found. v. Eastman Kodak Co., 12 F.3d 353, 357-58 (2d Cir.1994)). . Id. at 267-68 (citing In re Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964 (A.P.A. 1998)). . Id. at 269. . Id. . See generally Dkt. 120-1. . Dkt. 120-1 at 6. . 40 C.F.R. § 122.26(b)(13). Stormwater discharges associated with industrial activity are defined as \"discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 C.F.R. § 122.26(b)(14). . See Dkt. 120-1 at 7-8. . See Dkt. 112 at 25. . Dkt. 120-1 at 33. . Piney Run, 268 F.3d at 266, 269; see also 33 U.S.C. § 1342(k). . Id. at 259, 268-69 (citing Ketchikan, 7 E.A.D. 605, 1998 WL 284964). . See Northwest Environmental Advocates v. City of Portland, 56 F.3d 979, 982 (9th Cir. 1995); Piney Run, 268 F.3d at 269. . See Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir.2009) (each part of a contract is read with reference to the whole); Piney Run, 268 F.3d at 270 (an NPDES permit provision should be examined in the context of the entire permit). . Piney Run, 268 F.3d at 270. . Dkt. 120-1 at 6. . See Dkt. 120-1 at 7-8. . Dkt. 120-1 at 20. . Dkt. 127 at 13-15, 19; Dkt. 139 at 10. . See, e.g., Dkt. 140 at 10-11. . See 268 F.3d 255. . Id. at 259-62. . Id. at 260-61. . Id. at 269. . Id. at 270. . Id. . Id. at 270-71. . Id. . See Dkt. 120-1; see also Dkt. 121-5 (EPA letter describing the general permit as a prewritten" }, { "docid": "2672909", "title": "", "text": "alternatives, including, where practicable, a standard permitting no discharge of pollutants.” 33 U.S.C. § 1316(a)(1) (emphasis added). As with the effluent reductions promulgated under § 301, § 306 states that, once a standard of performance takes effect, “it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” 33 U.S.C. § 1316(e). Congress thus “intended these regulations to be absolute prohibitions.” E.I. du Pont de Nemours & Co. v. Train (“Du Pont”), 430 U.S. 112, 138, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977) (citing S.Rep. No. 92-414, at 58 (1971)). The legislative history of § 306 indicates that Congress made a “deliberate choice not to allow variances for new sources.” Riverkeeper, Inc. v. EPA, 358 F.3d 174, 192 (2d Cir. 2004). As such, no exceptions to a standard of performance are allowed. See id.; Du Pont, 430 U.S. at 138, 97 S.Ct. 965. To ensure compliance with effluent limitations and performance standards established pursuant to § 301 and § 306, Congress created the National Pollutant Discharge Elimination System (“NPDES”) permit program under § 402 of the Act. Through the NPDES program, EPA may permit a discharge, but only if it complies with § 301 and § 306. Additionally, NPDES permits are supposed to limit the release of pollutants into waterways as much as possible by imposing numerical discharge restrictions. Rybachek v. EPA, 904 F.2d 1276, 1283 (9th Cir.1990). For this reason, the NPDES permit program is considered “central to the enforcement” of the Clean Water Act. Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C.Cir.1977). In addition to the NPDES permit program, the Clean Water Act established a secondary permit program for the discharge of “dredged or fill material” under § 404. According to § 404, the Corps “may issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). We conclude that the permit scheme under § 404 is a limited permit program that applies only to" }, { "docid": "12438370", "title": "", "text": "and second claims. The Court therefore denies Plaintiffs’ motion for summary judgment on those claims. However, with respect to Plaintiffs’ third claim, material issues of fact remain and both parties’ summary judgment motions are therefore denied. 1. Coal Discharges from Over-Water Conveyer and Ship Loader. Plaintiffs’ first claim is that Defendants, without an NPDES permit, have discharged and continue to discharge coal from the over-water conveyer and ship loading area into Resurrection Bay. Defendants object to Plaintiffs’ motion, and separately move for summary judgment on this claim, on the basis that these discharges are covered by the General Permit or, alternatively, that Defendants are protected from liability by the CWA’s permit shield provision. The “CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.” Defendants do not dispute that coal is a “pollutant,” that Resurrection Bay constitutes “navigable waters,” or that the conveyer belt and ship loading area from which coal falls into the Bay are “point sources.” The parties’ disagreement concerns whether these discharges fall within the scope of discharges authorized by Defendants’ existing permit. A discharge in violation of the CWA is ordinarily a strict liability offense. An NPDES permit, while placing limits on the pollutants that may be discharged, may also protect the permit holder from strict liability for unauthorized discharges through what is known as the “permit shield” defense, codified at 33 U.S.C. § 1342(k). Section 1342(k) provides that “Compliance with a permit issued pursuant to this section shall be deemed compliance” with various sections of the CWA, including the provisions prohibiting unpermitted discharges. Whether the permit shield defense applies necessarily depends on the scope of the permit. The Fourth Circuit’s decision in Piney Run Preservation Association v. County Commissioners of Carroll County is the seminal ease addressing the scope of the CWA’s permit shield provision. In interpreting this provision, the Fourth Circuit applied the Supreme Court’s two-part Chevron analysis. At the first step, the court determined that the text of the permit shield provision was ambiguous. At the second step, the court determined" }, { "docid": "12438415", "title": "", "text": "covered subcategory of discharges are ... storm water point sources.” 40 C.F.R. 122.28(2)(i) (emphasis added). . See Dkt. 165 at 14 (oral argument testimony in which Plaintiffs state that their lawsuit \"is not a challenge that the Facility is violating its stormwater permit”). . Piney Run, 268 F.3d at 268 (citing Ketchikan, 7 E.A.D. 605, 1998 WL 284964). . Id. at 271. . Dkt. 121-8 . Dkt. 121-8. . Dkt. 120-1; Dkt. 121-8. . Dkt. 117 at 3. . See Dkt. 121-11 at 11. . Id. . Id. . Id. at 11, 15. . See zd. at 11, 15, 20. . See Piney Run, 268 F.3d at 269. . See Dkt. 120-1 at 33. . Dkt. 117 at 2. . See Dkt. 120-52. . See id. . See generally Dkt. 120-52. . Id. at 2. . Id. at 3 . Id. at 3. . Dkt. 121-52 at 4. . Id. . Id. . Dkt. 121-4. . Id. . See Dkt 121-3. . Dkt 121-5. . Id. . Dkt. 121-6. . Dkt. 117. . Id. at 5. . Id. . See Dkt. 120 at 43. Plaintiffs also cite the conveyer and ship loader as sources of coal dust that ends up in the Bay. However, these are among the discharges that were disclosed to, contemplated by, and regulated' by EPA. Defendants are therefore shielded from liability, pursuant to 33 U.S.C. § 1342(k), for coal dust that enters the Bay from those sources. . Dkt. 112 at 39-47; Dkt. 128 at 25-30. . Defendants alternatively argue that: (1) airborne dust emissions are regulated by the Clean Air Act, not the Clean Water Act; and (2) even if the dust emissions were regulated by the CWA, the coal dust is covered by Defendants’ existing permit. Dkt. 128 at 30; Dkt. 112 at 35. . N. Plains Res. Council, 325 F.3d at 1160 (citing 33 U.S.C. §§ 1311(a), 1342); see also Northwest Envtl. Advocates, 537 F.3d at 1010. . Rapanos, 547 U.S. at 723, 126 S.Ct. 2208. . 33 U.S.C. § 1362(12) (emphasis added); Miccosukee Tribe, 541 U.S. at 102, 124 S.Ct. 1537. ." }, { "docid": "23684250", "title": "", "text": "837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we adhere to the interpretation provided by the EPA. We therefore view the NPDES permit as shielding its holder from liability under the Clean Water Act as long as (1) the permit holder complies with the express terms of the permit and with the Clean Water Act’s disclosure requirements and (2) the permit holder does not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was granted. Applying this rule, we conclude that the Commissioners did not violate the Clean Water Act because (1) they complied with the discharge limitations and reporting requirements of their permit, and (2) their discharges of heat were within the reasonable contemplation of the permitting authority at the time the permit was issued. Accordingly, we vacate the judgment of the district court, and we remand for entry of judgment in favor of the Commissioners. I. Piney Run is a small stream with its headwaters near the border of Carroll and Baltimore counties in Maryland. The Maryland Department of the Environment (“MDE”) has classified Piney Run as a Class III P stream, which means that it is protected as a source of public drinking water and as a body capable of supporting a self-sustaining trout population. See Md. Regs. Code (“COMAR”) tit. 26, § 26.08.02.02(B)(5). Carroll County operates the Hampstead Waste-water Treatment Plant (“Plant”), which serves approximately 4200 residential and commercial users. As part of the treatment process, the Plant discharges effluent, i.e., treated wastewater, into Piney Run. Because of the Plant’s discharge of effluent into Piney Run, the Plant is subject to the Clean Water Act (“CWA”). See 33 U.S.C. § 1311(a). Under the CWA, dis-chargers must operate pursuant to a National Pollutant Discharge Elimination System (“NPDES”) permit obtained from either the Environmental Protection Agency (“EPA”) or an authorized state agency. See id. §§ 1311(a), 1342(a), (c); see also Md. Code Ann. Envir. § 9-323. Beginning in 1975, the Plant has operated under a series of NPDES permits granted by the MDE as the authorized" }, { "docid": "23684271", "title": "", "text": "EPA’s interpretation] is the only permissible construction that EPA might have adopted but only that EPA’s understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA.” Chemical Mfrs. Ass’n. v. Natural Res. Def. Council, Inc., 470 U.S. 116, 125, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985) (quoting Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 75, 87, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975)) (emphasis added). In applying step one of Chevron, we view the crucial language of the CWA as ambiguous. The permit shield provision, 33 U.S.C. § 1342(k), specifies that “compliance with a permit issued pursuant to this section shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1312, 1316, 1317, and 1343 of this title-.” Although this statutory language makes clear that compliance with a permit constitutes an exception to the general strict liability of the CWA, we must agree with the Second Circuit’s conclusion that § 1342(k) does not explicitly explain the scope of permit protection. See Atlantic States Legal Found., 12 F.3d at 357-58 (concluding that permit shield language ambiguous with respect to scope of coverage). Therefore, because Congressional intent is not clear, we must turn to the second step of the Chevron analysis. In applying step two of Chevron, we observe that the EPA has promulgated, pursuant to a formal adjudication, an interpretation of the permit shield provision that is reasonable. The EPA is authorized both to administer and enforce the CWA. See 33 U.S.C. § 1251(d). In a 1998 formal adjudication proceeding before the EPA’s Environmental Appeals Board, In re Ketchikan Pulp Co., the Board determined that the NPDES permit covers all pollutants disclosed to the permitting authority during the permit application process. 7 E.A.D. 605, 1998 WL 284964, at *12-13 (EPA 1998) (“[W]hen the permit-tee has made adequate disclosures during the application process regarding the nature of its discharges, unlisted pollutants may be considered to be within the scope of an NPDES permit, even though the permit does not" }, { "docid": "23684265", "title": "", "text": "primary exception to the blanket liability imposed by the CWA is the NPDES permitting system. See Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C.Cir.1977) (“[Tjhe legislative history makes clear that Congress intended the NPDES permit to be the only means by which a discharger from a point source may escape the total prohibition of [§ ]301(a).”). Although Congress intended the CWA to lead to the long-term elimination of pollutants in the nation’s waterways, Congress recognized the technological infeasibility of prohibiting all pollutants in the short term. See id. at 1373. Therefore, under § 402 of the CWA, individuals may apply for NPDES permits to discharge a limited amount of effluent. See 33 U.S.C. § 1311(a), 1342(a) & (c). The EPA issues NPDES permits; however, the EPA suspends its issuance of permits if it approves a state permitting program. See id. § 1342(c)(1). The EPA has authorized approximately forty states, including Maryland, to issue NPDES permits. See 57 Fed. Reg. 43,733, 43,734-35 (1992) (listing states with permitting authority). Permit holders, no matter the issuing authority, are required to comply “not only with the limitations on the amount of pollutants they may discharge, but also with a variety of monitoring, testing, and reporting requirements.” Gaston Copper, 204 F.3d at 151. Assuming that they follow the terms of their NPDES permits, however, permit holders avoid CWA liability. In crafting a permit, the permitting authority (either the EPA or the designated state authority, in this case, the MDE), must take account of two central concepts. The CWA requires that “every permit contain (1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls and (2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet ‘water quality standards.’” American Paper Inst. v. United States Envt’l. Prot. Agency, 996 F.2d 346, 349 (D.C.Cir.1993) (citing 33 U.S.C. § 1311(b)(1)) (internal citations omitted). Thus, despite the CWA’s shift in focus of environmental regulation towards the discharge of pollutants, water quality standards still have an important role in the CWA regulatory scheme. Be fore issuing a" }, { "docid": "18443325", "title": "", "text": "2518, 168 L.Ed.2d 467 (2007) (citing 33 U.S.C. §§ 1251(b), 1342). In December of 1977, the EPA authorized the State of Tennessee to issue some types of NPDES permits, which the State grants and enforces through TDEC. See 56 Fed. Reg. 21,376 (1991). In 1986, the EPA expanded that authorization to include the authority to issue and oversee permits for federal facilities such as the Gallatin Plant. 51 Fed. Reg. 32,834 (1986). B. The Permit Shield 353. The “permit shield” provision of the CWA provides that “[c]ompliance with a permit issued pursuant to [the NPDES] shall be deemed compliance” with the relevant portions of the CWA. 33 U.S.C. § 1342(k). The purpose of the permit shield is “to' relieve [permit holders] of having to litigate in an enforcement action the question whether them permits . are sufficiently strict.” ICG Hazard, 781 F.3d at 285 (quoting E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138 n.28, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977)). 354. The Sixth Circuit has adopted a two-pronged analysis for determining whether the permit shield will apply to the discharges alleged in a particular action: “[fjirst, the permit holder must' comply with the CWA’s reporting and disclosure requirements”; and, “[s]econd, ,.. the discharges must be within the permitting authority’s ‘reasonable contemplation.’” Id. (quoting Piney Run, 268 F.3d at 268). 355. The question of “reasonable contemplation” focuses in particular on whether the alleged discharges were “within the reasonable contemplation of the permitting authority during the permit application process.” Id. (quoting Piney Run, 268 F.3d at 267) (emphasis added). The question of reasonable contemplation is closely tied to a review of what the permittee itself disclosed, because “the scope of the permit as well.as the discharge limitations contained therein are based largely on information provided by the permit applicant.” In Re Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964, at ”10 (E.P.A. May 15, 1998). 356. As this Court held on September 9, 2016, “the Court should evaluate every feature of an alleged violation to determine if the relevant discharge or possibility \"thereof was adequately" }, { "docid": "23684272", "title": "", "text": "not explicitly explain the scope of permit protection. See Atlantic States Legal Found., 12 F.3d at 357-58 (concluding that permit shield language ambiguous with respect to scope of coverage). Therefore, because Congressional intent is not clear, we must turn to the second step of the Chevron analysis. In applying step two of Chevron, we observe that the EPA has promulgated, pursuant to a formal adjudication, an interpretation of the permit shield provision that is reasonable. The EPA is authorized both to administer and enforce the CWA. See 33 U.S.C. § 1251(d). In a 1998 formal adjudication proceeding before the EPA’s Environmental Appeals Board, In re Ketchikan Pulp Co., the Board determined that the NPDES permit covers all pollutants disclosed to the permitting authority during the permit application process. 7 E.A.D. 605, 1998 WL 284964, at *12-13 (EPA 1998) (“[W]hen the permit-tee has made adequate disclosures during the application process regarding the nature of its discharges, unlisted pollutants may be considered to be within the scope of an NPDES permit, even though the permit does not expressly mention those pollutants.”). In explaining this ruling, the Ketchikan Board observed that the EPA had already acknowledged that “it is impossible to identify and rationally limit every chemical or compound present in the discharge of pollutants” and that the EPA consequently had determined that the “goals of the CWA may be more effec tively achieved by focusing on the chief pollutants and wastestreams established in effluent guidelines and disclosed by per-mittees in their permit applications.” Id. at *11. The Board, adopting the reasoning of the Second Circuit in Atlantic States Legal Foundation, therefore held that “[t]he proper interpretation of the [CWA] regulations is that ... [w]ater quality based limits are established where the permitting authority reasonably anticipates the discharge of pollutants by the permittee at levels that have the reasonable potential to cause or contribute to an excursion above any state water quality criterion.” Id. at *11 (quoting Atlantic States Legal Found., 12 F.3d at 358). The Ketchikan decision therefore made clear that a permit holder is in compliance with the CWA even if" }, { "docid": "23684289", "title": "", "text": "507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). The doctrine has been deemed to apply in circumstances in which federal litigation raises a difficult, technical question that falls within the expertise of a particular agency. See, e.g., American Auto. Mfrs. Ass’n. v. Mass. Dept. of Envt’l. Prot., 163 F.3d 74, 81 (1st Cir.1998). In this case, the Commissioners contend that the district court should have deferred to the MDE to calculate the ambient temperature of Piney Run. Although the Commissioners’ point may be compelling, we need not reach this issue because the ambient temperature of Piney Run has no bearing on our disposition of this appeal. . The Commissioners contend that the district court abused its discretion in allowing Dr. Stauffer to opine that the Plant's discharge of heat was affecting Piney Run’s trout population. Specifically, the Commissioners claim that Dr. Stauffer's testimony did not meet the standards for admissibility. Regardless, because of the broad discretion accorded trial courts in such matters, and due to Dr. Stauf-fer's qualifications and the nature of his testimony, it was not erroneous for the district court to consider his evidence. . Under the CWA, states have the primary role in promulgating water quality standards. The CWA requires that states review their water quality standards at least once every three years in “a process commonly known as triennial review” to ensure that the standards \" 'protect the public health or welfare, enhance the quality of water and serve the purposes' of the Act.” American Paper Inst., 996 F.2d at 349 (quoting 33 U.S.C. § 1313(c)(2)(A)). . The EPA Administrator has delegated authority to review NPDES permit violations to the Environmental Appeals Board. See 40 C.F.R. §§ 1.25, 124.2. . Prior to its Ketchikan decision, the EPA in 1994 published a policy statement on the scope of the permit shield defense that mirrors its holding in Ketchikan. That statement provides in relevant part: A permit provides authorization and therefore a shield for the following pollutants resulting from facility processes, wastes-treams and operations that have been clearly identified in the permit application process when" }, { "docid": "23684264", "title": "", "text": "CWA (and its later amendments) represented a fundamental change in the manner of federal regulation of water pollution. The CWA “shifted the focus away from water quality standards to direct limitations on the discharge of pollutants.” Gaston Copper, 204 F.3d at 151 (citing 33 U.S.C. § 1311). Regulators no longer had to determine whether there was a causal link between the degradation of water quality and the pollutant in question; they simply had to determine whether the entity was discharging more pollutant into water than allowed by the CWA. Id. The CWA also established a default regime of strict liability. Unless a discharge fit within one of the CWA’s limited exceptions, the entity discharging the pollutant violated the CWA, regardless of the quantity of pollutant emitted. Id. Thus, the “centerpiece of the Clean Water Act,” § 301(a), provides that “[ejxcept as in compliance with this section and [other sections of the Act], the discharge of any pollutant by any person shall be unlawful.” Gaston Copper, 204 F.3d at 151 (quoting 33 U.S.C. § 1311(a)). The primary exception to the blanket liability imposed by the CWA is the NPDES permitting system. See Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C.Cir.1977) (“[Tjhe legislative history makes clear that Congress intended the NPDES permit to be the only means by which a discharger from a point source may escape the total prohibition of [§ ]301(a).”). Although Congress intended the CWA to lead to the long-term elimination of pollutants in the nation’s waterways, Congress recognized the technological infeasibility of prohibiting all pollutants in the short term. See id. at 1373. Therefore, under § 402 of the CWA, individuals may apply for NPDES permits to discharge a limited amount of effluent. See 33 U.S.C. § 1311(a), 1342(a) & (c). The EPA issues NPDES permits; however, the EPA suspends its issuance of permits if it approves a state permitting program. See id. § 1342(c)(1). The EPA has authorized approximately forty states, including Maryland, to issue NPDES permits. See 57 Fed. Reg. 43,733, 43,734-35 (1992) (listing states with permitting authority). Permit holders, no matter" }, { "docid": "23684274", "title": "", "text": "it discharges pollutants that are not listed in its permit, as long as it only discharges pollutants that have been adequately disclosed to the permitting authority. Id. at *17 (“[T]he discharge of unlisted pollutants is in violation of the CWA unless the applicant makes adequate disclosures to permit authorities during the application process about the source and nature of its discharges.”). To the extent that a permit holder discharges a pollutant that it did not disclose, it violates the NPDES permit and the CWA. Id. at *13 (“[W]here the discharger has not adequately disclosed the nature of its discharges to permit authorities, and as a result thereof the permit authorities are unaware that unlisted pollutants are being discharged, the discharge of unlisted pollutants has been held to be outside the scope of the permit.”). The EPA in Ketchikan therefore outlined the proper structure for the permitting process. The applicant discloses the nature of its effluent discharges to the permitting authority. The permitting authority analyzes the environmental risk posed by the discharge, and places limits on those pollutants that, in the words of the Second Circuit and EPA, it “reasonably anticipates” could damage the environmental integrity of the affected waterway. Id. at *11; Atlantic States Legal Found., 12 F.3d at 358 (internal citations omitted). Thus, as long as a permit holder complies with the CWA’s reporting and disclosure requirements, it may discharge pollutants not expressly mentioned in the permit. Ketchikan, 1998 WL 284964 at *11. The only other limitation on the permit holder’s ability to discharge such pollutants is that the discharges must be reasonably anticipated by, or within the reasonable contemplation of, the permitting authority. Id. at *11. Because the permitting scheme is dependent on the permitting authority being able to judge whether the discharge of a particular pollutant constitutes a significant threat to the environment, discharges not within the reasonable contemplation of the permitting authority during the permit application process, whether spills or otherwise, do not come within the protection of the permit shield. We see the EPA’s interpretation of the permit shield as a rational construction of the" }, { "docid": "23684273", "title": "", "text": "expressly mention those pollutants.”). In explaining this ruling, the Ketchikan Board observed that the EPA had already acknowledged that “it is impossible to identify and rationally limit every chemical or compound present in the discharge of pollutants” and that the EPA consequently had determined that the “goals of the CWA may be more effec tively achieved by focusing on the chief pollutants and wastestreams established in effluent guidelines and disclosed by per-mittees in their permit applications.” Id. at *11. The Board, adopting the reasoning of the Second Circuit in Atlantic States Legal Foundation, therefore held that “[t]he proper interpretation of the [CWA] regulations is that ... [w]ater quality based limits are established where the permitting authority reasonably anticipates the discharge of pollutants by the permittee at levels that have the reasonable potential to cause or contribute to an excursion above any state water quality criterion.” Id. at *11 (quoting Atlantic States Legal Found., 12 F.3d at 358). The Ketchikan decision therefore made clear that a permit holder is in compliance with the CWA even if it discharges pollutants that are not listed in its permit, as long as it only discharges pollutants that have been adequately disclosed to the permitting authority. Id. at *17 (“[T]he discharge of unlisted pollutants is in violation of the CWA unless the applicant makes adequate disclosures to permit authorities during the application process about the source and nature of its discharges.”). To the extent that a permit holder discharges a pollutant that it did not disclose, it violates the NPDES permit and the CWA. Id. at *13 (“[W]here the discharger has not adequately disclosed the nature of its discharges to permit authorities, and as a result thereof the permit authorities are unaware that unlisted pollutants are being discharged, the discharge of unlisted pollutants has been held to be outside the scope of the permit.”). The EPA in Ketchikan therefore outlined the proper structure for the permitting process. The applicant discloses the nature of its effluent discharges to the permitting authority. The permitting authority analyzes the environmental risk posed by the discharge, and places limits on" } ]

[ { "docid": "4034710", "title": "", "text": "makes no difference what the reason was for paying it in that form [Commissioner of Internal Revenue v. Proctor Shop, Inc., 9 Cir., 82 F.2d 792]; and one who executes an instrument which does not correctly describe the relation of the parties, may, as against the government, disclose the true relationship of debtor and creditor; and sums paid as interest, regardless of the name by which they are called, may be deducted by the taxpayer from its income. Arthur R. Jones Syndicate v. Commissioner of Internal Revenue, 7 Cir., 23 F.2d 833. Payment of interest, in The form of dividends, does not change its character when it is shown that the reason for taking that form was for some reason personal to the parties concerned. Wiggin Terminals, Inc. v. United States, 1 Cir., 36 F.2d 893, 898. The essential difference between a stockholder and a creditor is that the stockholder’s intention is to embark upon the corporate adventure, taking the risks of loss attendant upon it, so that he may enjoy the chances of profit. The creditor, on the other hand, does not intend to take such risks so far as they may be avoided, but merely to lend his capital to others who do intend to take them. Helvering v. Richmond F. & P. R. Co., 4 Cir., 90 F.2d 971. See Warren v. King, 108 U.S. 389, 399. It is to be observed that a creditor may, through the contract giving rise to the indebtedness, or some other contract affecting his status or governing his right, bind himself to give precedence to ordinary creditors. Commissioner of Internal Revenue v. O. P. P. Holding Corp., 2 Cir., 76 F.2d 11; Meridian & Thirteenth Realty Co. v. Commissioner of Internal Revenue, 44 B.T.A. 865. See In re Hicks-Fuller Co., 8 Cir., 9 F.2d 492. Many cases relied upon by the Government, can be distinguished from the facts before us, on the ground that certificates in those instances were to be paid only from earnings; there was no fixed maturity date; the date of redemption was at the option of the" } ]

[ { "docid": "11930807", "title": "", "text": "and actual interests conveyed to it by [Foundation) * * Not only were these findings not clearly erroneous, F.R.Civ.P. 52, but in our opinion it would be difficult to more accurately state the status of Taxpayer in this respect. The Government contends that the notes were not a bona fide indebtedness because Taxpayer was really under no obligation to pay them off. The Government couples this assertion with the fact that Foundation was the sole stockholder of Taxpayer to support its conclusion that the amounts paid on the notes as interest were dividends in reality. We cannot align ourselves with this theory. Both the 1939 Code and the 1954 Code provide that there shall be allowed as a deduction all interest on indebtedness which is paid or has accrued within the taxable year. In the many years since this provision first appeared in the taxing statutes, Congress has not sought to qualify this basic command that interest is deductible by forbidding its application to situations involving parent-subsidiary corporations. We have no doubt about the basic proposition that an individual or corporation can occupy the dual position of stockholder and creditor even though such stockholder-creditor owns a mere fraction or all of the debtor corporation’s stock. Farley Realty Corp. v. Commissioner, 2 Cir., 1960, 279 F.2d 701; 4 Mertens, Federal Income Taxation § 26.06 (1960). And transactions between parent-subsidiary corporations are not to be disregarded for tax purposes merely because of that relationship. By the same token, a transaction should not be disregarded merely because it occurred in response to a change in the governing tax law. Kraft Foods Co. v. Commissioner, 2 Cir., 1956, 232 F.2d 118. “§ 23. Deductions from gross income. “In computing net income there shall be allowed as deductions: * * * * * “(b) Interest. All interest paid or accrued within the taxable year on indebtedness * * Internal Revenue Code of 1954: “§ 163. Interest. “(a) General rule. — There shall be allowed as a deduction all interest paid or accrued within the taxable year on indebtedness. * * (26 U.S.C.A. § 163). The" }, { "docid": "17241999", "title": "", "text": "1063-1065 (1955). . In Jaeger Auto Finance Co. v. Nelson, 191 F.Supp. 693 (E.D.Wis.1961), the court found the thin capitalization rationale unpersuasive inasmuch as the taxpayer corporation was a finance company. . If, as counsel for the taxpayer asserted below, the total equity was in round figures $20,000, $30,000, and $50,000, respectively, at the end of the taxable years in question, and if non-shareholder debt (other than that held by the wife, see note 12, infra) is excluded, as the ALI Report of Working Views suggests, the petitioner’s ratios for 1955, 1956, and 1957 would be approximately 7:1, 4.5:1, and 3:1. . Under the circumstances presented in the case at bar, Hilda Frank, who, as we have stated, was the secretary of the corporation and wife of Philip Frank, cannot be considered an outside lender. In substance, the amount advanced to the corporation by the Franks for the debentures came from but one source, the family controlling the corporation. Zephyr Mills, Inc., 18 TCM 794, 799 (1959); aff’d per curiam, 279 F.2d 494 (3 Cir. 1960). See also Hoguet Real Estate Corp., 30 T.C. 580, 599-600 (1960). . See Gilbert v. Commissioner, 248 F.2d 399, 407, 409-410 (2 Cir. 1957), on remand, 17 TCM 29, aff’d 262 F.2d 512 (2 Cir. 1958), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Prudence Securities Corp. v. Commissioner, 135 F.2d 340, 341 (2 Cir. 1943); Gooding Amusement Co., 23 T.C. 408, 418-419 (1954), aff’d, 236 F.2d 159 (6 Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957); Edward T. Janeway, 2 T.C. 197, 202-203 (1943), aff’d, 147 F.2d 602 (2 Cir. 1945); Gloucester Ice & Cold Storage Co., 19 TCM 1015, 1020 (1960), rev’d, 298 F.2d 183 (1 Cir. 1962). . E.g., compare Brake & Electric Sales Corp. v. United States, 2S7 F.2d 426 (1 Cir. 1961), with Gloucester Ice & Cold Storage Co. v. Commissioner, 298 F.2d 183 (1 Cir. 1962); compare Gregg Co. of Del. v. Commissioner, 239 F.2d 498 (2 Cir. 1956), cert. denied, 353 U.S. 946, 77 S.Ct. 825, 1" }, { "docid": "21446047", "title": "", "text": "factors generally used by the courts in determining whether amounts advanced to a corporation constitute equity capital or indebtedness. They are (1) the names given to the certificates evidencing the indebtedness; (2) the presence or absence of a maturity date; (3) the source of the payments; (4) the right to enforce the payment of principal and interest; (5) participation in management; (6) a status equal to or inferior to that of regular corporate creditors; (7) the intent of the parties; (8) “thin” or adequate capitalization; (9) identity of interest between creditor and stockholder; (10) payment of interest only out of “dividend” money; (11) the ability of the corporation to obtain loans from outside lending institutions.’ O. H. Kruse Grain & Milling Co. v. Commissioner [of Internal Revenue], 9th Cir., 1960, 279 F.2d 123, 125. See Mertens Federal Income Taxation § 26.10c. “This Circuit has rejected the notion that thin capitalization alone will justify the Commissioner in designating an indebtedness as capital, but recognizes that this factor need not be ignored in determining whether all of the facts authorize the inference of an intent to make a contribution to capital. Rowan v. United States, 5th Cir., 1955, 219 F. 2d 51. Evidence which may tend to prove that a transaction was a contribution to capital may be of many sorts. Sun Properties v. United States, 5th Cir., 1955, 220 F.2d 171; Aqualane Shores, Inc. v. Commissioner [of Internal Revenue], 5th Cir., 1959, 269 F.2d 116. No comprehensive rule can be stated which will be applicable in all cases. Commissioner [of Internal Revenue] v. T. R. Miller Mill Co., 5th Cir., 1939, 102 F.2d 599.” The United States Court of Appeals for the Sixth Circuit in United States v. Title Guarantee & Trust Co., 133 F.2d 990, in considering the distinction between a stockholder and a creditor, stated: “The essential difference between . a stockholder and a creditor is that the stockholder’s intention is to embark upon the corporate adventure, taking the risks of loss attendant upon it, so that he may enjoy the chances of profit. The creditor, on the other" }, { "docid": "15061279", "title": "", "text": "the board of directors of the taxpayer, taking into account the taxpayer’s earnings. The trial court held these notes were never delivered to their owners, but “remained in the taxpayer’s possession at all times.” This finding was challenged by petitioner, and rests on conflicting evidence, though there is evidence to support the finding. In 1952 an unusual incident occurred. The rate of interest on the notes, fixed at five per cent on December 31st, 1951, was, on November 4th, 1952, increased to six per cent. This was done by the taxpayer, not by the owners (and presumably holders), of the notes. A comparison of the amounts of the various accounts with the number of shares of stock, if any, of the note-holders is as follows: The amount of surplus, dividends, salaries paid, and interest paid between 1939 and 1955 is as follows: In 1956 the account “Bills Payable” was changed to “Notes Payable.” On the foregoing state of facts, the Commissioner disallowed all interest deductions, and held that the Bills Payable Account represented actual capital invested. The Tax Court affirmed, holding the amounts payable as interest in 1953, 1954 and 1955 were actually a distribution of dividends on equity capital. It is conceded here that the burden of proving the payments were interest, was on the taxpayer. Gooding Amusement Co. v. Commissioner, 6 Cir., 1956, 236 F.2d 159, 166, certiorari denied 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed. 2d 599; Bair v. Commissioner, 2 Cir., 1952, 199 F.2d 589, 591; Matthiessen v. Commissioner, 2 Cir., 1952, 194 F.2d 659, 661. It is likewise conceded by taxpayer that the Tax Court, and we, are required to consider the evidence in the light of eleven tests: (1) The name given to the certificates evidencing the indebtedness. (2) The presence or absence of a maturity date. (3) The source of the payments. (4) The right to enforce the payment of principal and interest. (5) Participation in management. (6) A status equal to or inferior to that of regular corporate creditors. (7) The intent of the parties. (8) Capitalization. (9) Identity of interest" }, { "docid": "11930812", "title": "", "text": "Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171; Farley Realty Corp. v. Commissioner, 2 Cir., 1960, 279 F.2d 701, and there are many cases holding both pro and con on this issue, e. g., United States v. Title Guarantee & Trust Co., 6 Cir., 1943, 133 F.2d 990; Gooding Amusement Co. v. Commissioner, 6 Cir., 1956, 236 F.2d 159; Kraft Foods Co. v. Commissioner, 2 Cir., 1956, 232 F.2d 118, some of which have attempted to set down guidelines for the future, e. g., Brake & Electric Sales Corp. v. United States, D.C.Mass., 1960, 185 F.Supp. 1, aff’d, 1 Cir., 1961, 287 F.2d 426. It would serve no useful purpose for us to distinguish the eases relied on by the Government or to determine whether in the light ’ of our holdings we would accept them as authoritative. But we hold that under the circumstances of this record, a bona fide indebtedness existed and Taxpayer is entitled to deduct the interest it actually paid to Foundation. II. We come now to the question of whether the stepped-up basis can be sustained. At least in a formal way this turns on the question whether these notes were to be classified as “stock” or “securities” within the purview of § 112(b) (5) of the 1939 Code which provides in material part that no gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or security in such corporation. Section 113(a) of the 1939 Code provides that as a gen eral rule the basis of property for the purpose of determining gain or loss — and under § 114(a), (b) for the purpose also of computing depreciation and depletion allowances — shall be the “cost” of such property. The exception pertinent here is contained in § 113(a) (8) which provides that where property is acquired by a corporation in an exchange governed by § 112(b) (5), or as paid-in surplus or as a contribution to capital, the basis of the property shall be the same as" }, { "docid": "17242001", "title": "", "text": "L.Ed.2d 856 (1957), with Kraft Food Co. v. Commissioner, 232 F.2d 118 (2 Cir. 1956); compare Wilbur Security Co. v. Commissioner, 279 F.2d 657 (9 Cir. 1960), with Miller’s Estate v. Commissioner, 239 F.2d 729 (9 Cir. 1956). . These indicia may be divided roughly into two categories. The first embraces such significant factors as the inadequacy of the equity capital in respect to corporate purposes and the use to which the advances are put. These factors may preclude a finding of indebtedness though the instrument itself contains classic debt provisions. The other group of factors includes lack of definite maturity date, presence of voting rights, payments being made conditional and similar incidents, and is related more directly to the characteristics of indebtedness. Such factors may appear on the face of the instrument and “hybrid securities” are created thereby: e. g., securities possessing characteristics of both debt and stock. The classic example of some decades ago was the participating operation certificate, the POO, no longer in style. See In re Hawkeye Oil Co., 19 F.2d 151 (D.Del.1927). But hybrid provisions frequently are found in the actual practices of the parties or are embodied in agreements that do not find reflection on the face of the instrument of indebtedness, as in the case at bar. The effects of “hybridization” come into play whether the securities are held by sole or pro-rata stockholders or by “outside creditors”. See ALI Report of Working Views, p. 429. However, hybridization factors possess greater significance when the lender is a pro-rata stockholder than when he is an “outsider”. For example, such a factor as an indefinite extension of a maturity date could be deemed to be coincidental where advances by an “outside lender” were involved, but coincidence might seem to be an insufficient explanation where the advances were made by a pro-rata stockholder. . See Calligar, Subordination Agreements, 70 Yale L.J. 376, 377-378 (1961). . Compare Farley Realty Corp. v. Commissioner, 279 F.2d 701, 704-705 (2 Cir. 1900), and Jewel Tea Co. v. United States, 90 F.2d 451, 112 A.L.R. 182 (2 Cir. 1937), with Commissioner" }, { "docid": "11930810", "title": "", "text": "show an intent on the part of Taxpayer to pay to Foundation an amount over and above the principal payments at a specified rate. More than that, intent is very much a fact on which the Court made findings which come here with the buckler and shield of F.R.Civ.P. 52(a). In reaching our decision that the notes represented actual genuine indebtedness upon which there was interest due, we have kept in mind these many factors. Both Taxpayer and Foundation were separate bona fide entities. The transactions under scrutiny were brought about by the good faith efforts of Foundation to maintain its income free and clear so that it could continue its many benevolent activities. A business need arose because of change in tax laws. Foundation’s claim as creditor was never subrogated nor was there a waiver or modification of its prior liens on the property transferred. Taxpayer was not under-capitalized. It had $100,000 in paid-in capital. Throughout the years in question, Taxpayer maintained daily bank balances in excess of $225,000. The notes could ha.ve been paid on their original maturity date by “outside” financing which would have been commercially attractive. The consideration for the notes (property transferred from Foundation to Taxpayer) was entirely adequate. The trial Judge found, based on evidence which he was entitled to credit and which we have no basis to reject, that 'Foundation accepted the notes intending to collect them and Taxpayer gave the notes intending to pay them. The amount of the notes was gradually, but consistently, reduced and the ratio of debt to value of the property continually enhanced. The fact that years later the notes were ultimately cancelled and the outstanding amount thereof contributed to Taxpayer’s paid-in surplus while a factor, is certainly not enough to compel the trier to disregard all of the other indicia of a real debt for both principal and interest. Little more need be said about this phase of the case. Both Taxpayer and the Government rely on the language of several of the same cases, e. g., Rowan v. United States, 5 Cir., 1955, 219 F.2d 51;" }, { "docid": "5490488", "title": "", "text": "gave rise to. See, e. g., Nassau Lens Co. v. Commissioner of Internal Revenue, 308 F.2d 39, 47 (2 Cir. 1962); Sarkes Tarzian, Inc. v. United States, 240 F.2d 467, 470 (7 Cir. 1957); Estate of Miller v. Commissioner of Internal Revenue, 239 F.2d 729, 734 (9 Cir. 1956); Gooding Amusement Co. v. Commissioner of Internal Revenue, 236 F.2d 159, 166 (6 Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957); Rowan v. United States, 219 F.2d 51, 54 (5 Cir. 1955); Helvering v. Richmond F. & P. Ry. Co., 90 F.2d 971, 975 (4 Cir. 1937); Mason-Dixon Sand & Gravel Co. v. Commissioner of Internal Revenue, 30 P-H T.G. Memo Dec. 1478-61, 1484-61 (1961). However, as the district court observed, the real intent of the parties is not to be derived solely from their testimony, but all the relevant surrounding circumstances must be considered. Cf. Wachovia Bank & Trust Co. v. United States, 288 F.2d 750, 754-756 (4 Cir. 1961). A court is not bound by what parties say they intended if their actions were inconsistent with their words. Wilbur Security Co. v. Commissioner of Internal Revenue, 279 F.2d 657, 662 (9 Cir. 1960). After considering all the surrounding circumstances and the guidelines laid down in the authorities cited to him by counsel for both the taxpayer and the Commissioner, the district judge decided that the advances made to Wood Preserving by Mr. Smith in 1955 and 1956 were contributions to capital and not loans. The brief filed in this court by the taxpayer’s counsel and his oral argument before us have in effect invited us to substitute our appraisal of the factual evidence for that of the district court. This course of action, however, is not open to us, for even if we might have decided the case differently had we been the initial finders of fact, we are bound by the district court’s factual findings unless it can be said that they are clearly erroneous. 3 On this record, we cannot say that Judge Thomsen’s finding regarding the nature of Smith’s advances" }, { "docid": "13043073", "title": "", "text": "capital as were the corporations involved in the above cases. It was authorized to, and did, issue capital stock. There appears in the record no reason, except for tax avoidance, why the $60,000 for which the certificates of indebtedness were issued could not have been contributed to the corporation in return for stock, rather than casting the transaction in the form of an indebtedness which created a debt-to-equity ratio of 60 to 1. The burden of proving that the certificates evidenced indebtedness was on petitioner. Arlington Park Jockey Club v. Sauber, 262 F.2d 902, 905 (7th Cir. 1959). We approve the Tax Court’s statement, based on Gooding Amusement Co. v. Commissioner, 236 F.2d 159 (6th Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957), that it was not precluded by the form of the certificates from inquiring into the real substance of the transactions, and that even in form the certificates do not meet the classic criteria of a bona fide debt set out in Gilbert v. Commissioner, 248 F.2d 399 (2d Cir. 1957). Petitioner is not obligated to pay interest, in a fixed amount or otherwise, nor is any principal amount ascertainable and payable in any event. Gloucester Ice & Cold Storage Co. v. Commissioner, 298 F.2d 183 (1st Cir. 1962). While no one factor is conclusive in determining whether the payments in question were dividends, Commissioner v. Meridian & Thirteenth Realty Co., 132 F.2d 182 (7th Cir. 1942), we think the Tax Court considered and gave weight to the appropriate factors in evidence in reaching its decision that as a matter of economic reality and for the purposes of the federal income tax law petitioner was not a debtor of the certificate holders. Among these factors were petitioner’s thin capitalization, totally inadequate for carrying out the corporate purpose, John Kelley Co. v. Commissioner, 326 U.S. 521, 526, 66 S.Ct. 299, 90 L.Ed. 278 (1946); Brake & Electric Sales Corp. v. United States, 287 F.2d 426, 428 (1st Cir. 1961); the speculative nature of the enterprise and the anticipated returns based on sales of" }, { "docid": "16084488", "title": "", "text": "the success of the business and that repayment was to be made only out of profits. Second, taxpayer’s advances were also subordinated to MacKay’s indebtedness to its other creditors. While MacKay’s obligations to the taxpayer were past due and unpaid, MacKay continued to pay all of its obligations to its creditors. When MacKay finally ceased operations, all of its creditors were paid in full, yet no such payments were ever made on the notes held by taxpayer. Finally, although this Circuit has rejected the notion that thin capitalization will alone justify the commissioner in designating indebtedness as capital, Rowan v. United States, 219 F.2d 51 (5th Cir. 1955), it is very strong evidence in a case such as this where (1) the debt to equity ratio was high to start with, (2) the parties understood that it would likely go higher, and (3) substantial portions of these funds were used for the purchase of capital assets and for meeting expenses needed to commence operations. The sum total of these several factors makes the conclusion inescapable that these transactions resulted in a contribution to the capital of MacKay and did not create any genuine indebtedness within the meaning and scope of the relevant provisions of the Internal Revenue Code. II Even if we assume for purposes of argument that these transactions created a bona fide indebtedness, the evidence overwhelmingly reflects that taxpayer was not engaged in the trade or business of lending money within the meaning of Section 166, Internal Revenue Code, and thus taxpayer is not entitled to a bad debt deduction. The guideposts for determining what constitutes a trade or business under Section 166(d) (2) are nearly as amphorous as those involved in distinguishing indebtedness from equity investments under Section 165(g) and again no single test or factor is determinative. In general, the activities constituting the trade or business must occupy a substantial amount of the taxpayer’s time or of the time of taxpayer’s employees, see Snell v. Commissioner of Internal Revenue, 97 F.2d 891 (5th Cir. 1938), and these activities must be direct compensation for the taxpayer’s activities" }, { "docid": "17580585", "title": "", "text": "to the prevailing rate. There was no written obligation to evidence an indebtedness. The Brice debt, so called, was frequently subordinated to loans made by banks to Montclair. The Tax Court reached the conclusion that the funds advanced to Montclair by M. F. Brice were risk capital rather than loans and sustained the Commissioner in disallowing deductions for the payments claimed as interest. We find no error in the Tax Court’s conclusion. The criteria to be considered in determining questions such as this case poses have been thus stated: “There are at least eleven separate determining factors generally used by the courts in determining whether amounts advanced to a corporation constitute equity capital or indebtedness. They are (1) the names given to the certificates evidencing the indebtedness; (2) the presence or absence of a maturity date; (3) the source of the payments; (4) the right to enforce the payment of principal and interest; (5) participation in management; (6) a status equal to or inferior to that of regular corporate creditors; (7) the intent of the parties; (8) ‘thin’ or adequate capitalization; (9) identity of interest between creditor and stockholder; (10) payment of interest only out of ‘dividend’ money; (11) the ability of the corporation to obtain loans from outside lending institutions.” O. H. Kruse Grain & Milling Co. v. Commissioner, 9th Cir., 1960, 279 F.2d 123, 125. See Mertens Federal Income Taxation § 26.10c. This Circuit has rejected the notion that thin capitalization alone will justify the Commissioner in designating an indebtedness as capital, but recognizes that this factor need not be ignored in determining whether all of the facts authorize the inference of an intent to make a contribution to capital. Rowan v. United States, 5th Cir., 1955, 219 F.2d 51. Evidence which may tend to prove that a transaction was a contribution to capital may be of many sorts. Sun Properties v. United States, 5th Cir., 1955, 220 F.2d 171; Aqualane Shores, Inc. v. Commissioner, 5th Cir., 1959, 269 F.2d 116. No comprehensive rule can be stated which will be applicable in all cases. Commissioner v. T. R." }, { "docid": "14093112", "title": "", "text": "investor in the corporation. Bowersoek itself recognizes that “every case turns on its own facts.” A review of the entire record discloses that substantial evidence sustains the findings of the trial court and that the inferences which that court drew from the evidence are reasonable. Neither a choice between two permissible views of the weight of the evidence nor a choice between conflicting reasonable inferences from the evidence is clearly erroneous. The taxpayer has failed to sustain the burden of proving that the payments in question are deductible as interest under § 163(a). Affirmed. . Originally the debenture notes were issued in the amount of $67,003.20. Later, additional contributions of $2,615.20 were made to common stock and $10,460.80 to debenture notes. The 4 to 1 ratio was changed insignificantly when two stockholders disposed of their interests and an eighth individual joined the corporation. . The original debenture notes matured in 1966 and bore 4% interest. In 1960 new notes were exchanged for the original notes. The new notes matured in 1970 and carried 6% interest. Through oversight, interest was paid annually for the first two years rather than semi-annually. . 26 U.S.C. § 163(a). . Charter Wire, Inc., v. United States, 7 Cir., 309 F.2d 878, 880, certiorari denied 372 U.S. 965, 83 S.Ct. 1090, 10 L.Ed.2d 129. . Brake & Electric Sales Corporation v. United States, 1 Cir., 287 F.2d 426, 427; P. M. Finance Corporation v. Commissioner, 3 Cir., 302 F.2d 786, 789. . Bowersoek Mills & Power Co. v. Commissioner, 10 Cir., 172 F.2d 904, 907. . See Bowersoek Mills & Power Co. v. Commissioner, supra, 172 F.2d p. 907. . See Kraft Foods Company v. Commissioner, 2 Cir., 232 F.2d 118, 126-127. . See Bowersock Mills & Power Co. v. Commissioner, 10 Cir., 172 F.2d 904, 907. . Rowan v. United States, 5 Cir., 219 F.2d 51, 55. . Wachovia Bank and Trust Company v. United States, 4 Cir., 288 F.2d 750, 756. . Charter Wire, Inc., v. United States, 7 Cir., 309 F.2d 878, 880, certiorari denied 372 U.S. 965, 83 S.Ct. 1090, 10 L.Ed.2d" }, { "docid": "5490487", "title": "", "text": "79 S. Ct. 1139, 3 L.Ed.2d 1030 (1959). Accordingly, it introduced considerable evidence before Judge Thomsen for the purpose of acquainting the court with the circumstances which existed at the time Mr. Smith came to the financial assistance of the taxpayer. Although counsel for the taxpayer was clearly aware that the Supreme Court had observed almost two decades before that “[t]here is no one characteristic * * * which can be said to be decisive in the determination of whether [advances like those in the present case] are risk investments * * or debts,” John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 530, 66 S.Ct. 299, 304, 90 L.Ed. 278 (1946), it seems fair to say that he placed primary emphasis upon evidence which he felt demonstrated the intent of the parties in making and receiving the advances. This court and others have observed that the real intention of those who participated in a transaction like the one currently in issue is of crucial importance in determining later what relationship their conduct gave rise to. See, e. g., Nassau Lens Co. v. Commissioner of Internal Revenue, 308 F.2d 39, 47 (2 Cir. 1962); Sarkes Tarzian, Inc. v. United States, 240 F.2d 467, 470 (7 Cir. 1957); Estate of Miller v. Commissioner of Internal Revenue, 239 F.2d 729, 734 (9 Cir. 1956); Gooding Amusement Co. v. Commissioner of Internal Revenue, 236 F.2d 159, 166 (6 Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957); Rowan v. United States, 219 F.2d 51, 54 (5 Cir. 1955); Helvering v. Richmond F. & P. Ry. Co., 90 F.2d 971, 975 (4 Cir. 1937); Mason-Dixon Sand & Gravel Co. v. Commissioner of Internal Revenue, 30 P-H T.G. Memo Dec. 1478-61, 1484-61 (1961). However, as the district court observed, the real intent of the parties is not to be derived solely from their testimony, but all the relevant surrounding circumstances must be considered. Cf. Wachovia Bank & Trust Co. v. United States, 288 F.2d 750, 754-756 (4 Cir. 1961). A court is not bound by what parties say" }, { "docid": "23368901", "title": "", "text": "bank loans paid off in full— loans could not be paid off while corporation continued in bar and cocktail lounge financing business; Gooding Amusement Co. v. C. I. R., 236 F.2d 159 (6th Cir. 1966), subordination to general creditors; United States v. Snyder Brothers Company, supra; McSorley’s Inc. v. United States, 323 F.2d 900 (9th Cir. 1963); subordinated by agreement to all debt, existing or not, secured or not; Charter Wire, Inc. v. United States, supra, subordinate to later bank loan. . See, e. g., “hybrid” cases such as John Wanamaker Philadelphia v. Com’r of Int. Revenue, 139 F.2d 644 (3rd Cir. 1943; Mullin Building Corporation v. C. I. R., supra; Pierce Estates v. Commissioner of Internal Revenue, 195 F.2d 475 (3rd Cir. 1952), where the instruments had names that indicated equity attributes and were carried as capital entries. . Apparently the District Court regarded demand notes as having no fixed maturity, see Conclusion of Law 4. This seems incorrect since demand paper means that the debt is “mature” at the holder’s option. The better characterization would seem to be that demand notes held by someone with a voice in management are a type of long-term investment. See, e. g., Taft v. C. I. R., 314 F.2d 620 (9th Cir. 1963). . This consistent treatment does not, of course, estop either the Commissioner or the taxpayer any more than the decision in this case controls the tax status of repaid principal on these loans in the hands of the remaining Fin Hay shareholders. The Government may well have sought to challenge these corporate interest deductions before challenging the individuals’ returns as a matter of tactics, but this, and the question of the tax consequences of the liquidation of the remaining loans in 1962-1963, should not influence the decision in the present case, see Budd Company v. United States, 252 F.2d 456, 458 (3rd Cir. 1957). . See, e. g., Farley Realty Corporation v. C. I. R., 279 F.2d 701, 704 (2nd Cir. 1960) ; Wilshire & West Sandwiches v. Commissioner of Int. R., 175 F.2d 718, 720 (9th Cir. 1949)." }, { "docid": "11930814", "title": "", "text": "it would be in the hands of the transferor. These provisions remain basically unchanged in the 1954 Code. Thus if these notes were “stock” or “securities” Taxpayer must use Foundation’s basis for depletion and depreciation, rather than the actual purchase price and fair market value of the depreciable and depletable assets. While it may appear to pose some conceptual difficulties, tax law is hardly a complete symmetry. Consequently, the decision under Part I that the notes represent a genuine indebtedness does not automatically solve the problem of basis. So-called bona fides is not decisive. The question still remains whether businessmen acting with all honor and sincerity have, or have not, set up a transaction which tax law regards as “stock” or “securities.” It therefore remains our lot to determine the correctness of the Court’s holding that these notes were not “stock” or “securities” within the meaning of the applicable sections of the Code. Both parties rely strongly on Camp Wolters Enterprises, Inc. v. Commissioner, 5 Cir., 1956, 230 F.2d 555, and Aqualane Shores, Inc. v. Commissioner, 5 Cir., 1959, 269 F.2d 116. Taxpayer also places emphasis on Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171. In Aqualane Shores, a corporation was organized by a father and two sons, each of whom contributed $3,200 for its capital stock. They then conveyed to the corporation substantially all of the land which they had acquired a few months earlier as a partnership which had a cost to them of $69,000 for a total consideration of $250,000, a major part of which was to be paid for by the corporation’s execution of five annual installment notes. The land was for the most part mangrove swamp which had to be dredged in order to make it marketable. The corporation gave mortgages as security for money it borrowed to develop the swamp. The tax question presented was the basis of the land. We held that the corporation held the land on the same basis as its transferors, strongly emphasizing such factors as: the corporation only had $600 of operating funds; it could" }, { "docid": "17242000", "title": "", "text": "1960). See also Hoguet Real Estate Corp., 30 T.C. 580, 599-600 (1960). . See Gilbert v. Commissioner, 248 F.2d 399, 407, 409-410 (2 Cir. 1957), on remand, 17 TCM 29, aff’d 262 F.2d 512 (2 Cir. 1958), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Prudence Securities Corp. v. Commissioner, 135 F.2d 340, 341 (2 Cir. 1943); Gooding Amusement Co., 23 T.C. 408, 418-419 (1954), aff’d, 236 F.2d 159 (6 Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957); Edward T. Janeway, 2 T.C. 197, 202-203 (1943), aff’d, 147 F.2d 602 (2 Cir. 1945); Gloucester Ice & Cold Storage Co., 19 TCM 1015, 1020 (1960), rev’d, 298 F.2d 183 (1 Cir. 1962). . E.g., compare Brake & Electric Sales Corp. v. United States, 2S7 F.2d 426 (1 Cir. 1961), with Gloucester Ice & Cold Storage Co. v. Commissioner, 298 F.2d 183 (1 Cir. 1962); compare Gregg Co. of Del. v. Commissioner, 239 F.2d 498 (2 Cir. 1956), cert. denied, 353 U.S. 946, 77 S.Ct. 825, 1 L.Ed.2d 856 (1957), with Kraft Food Co. v. Commissioner, 232 F.2d 118 (2 Cir. 1956); compare Wilbur Security Co. v. Commissioner, 279 F.2d 657 (9 Cir. 1960), with Miller’s Estate v. Commissioner, 239 F.2d 729 (9 Cir. 1956). . These indicia may be divided roughly into two categories. The first embraces such significant factors as the inadequacy of the equity capital in respect to corporate purposes and the use to which the advances are put. These factors may preclude a finding of indebtedness though the instrument itself contains classic debt provisions. The other group of factors includes lack of definite maturity date, presence of voting rights, payments being made conditional and similar incidents, and is related more directly to the characteristics of indebtedness. Such factors may appear on the face of the instrument and “hybrid securities” are created thereby: e. g., securities possessing characteristics of both debt and stock. The classic example of some decades ago was the participating operation certificate, the POO, no longer in style. See In re Hawkeye Oil Co., 19 F.2d" }, { "docid": "11930808", "title": "", "text": "proposition that an individual or corporation can occupy the dual position of stockholder and creditor even though such stockholder-creditor owns a mere fraction or all of the debtor corporation’s stock. Farley Realty Corp. v. Commissioner, 2 Cir., 1960, 279 F.2d 701; 4 Mertens, Federal Income Taxation § 26.06 (1960). And transactions between parent-subsidiary corporations are not to be disregarded for tax purposes merely because of that relationship. By the same token, a transaction should not be disregarded merely because it occurred in response to a change in the governing tax law. Kraft Foods Co. v. Commissioner, 2 Cir., 1956, 232 F.2d 118. “§ 23. Deductions from gross income. “In computing net income there shall be allowed as deductions: * * * * * “(b) Interest. All interest paid or accrued within the taxable year on indebtedness * * Internal Revenue Code of 1954: “§ 163. Interest. “(a) General rule. — There shall be allowed as a deduction all interest paid or accrued within the taxable year on indebtedness. * * (26 U.S.C.A. § 163). The Code requires three things before interest can be deducted. (1) There must be an indebtedness. (2) There must be interest on it. (3) What is claimed as an interest deduction must have been paid or accrued within the tax year. 4 Mertens, Federal Income Taxation § 26.01, p. 3 (1960). There is no doubt that (3) has been satisfied here. Taxpayer actually made interest payments to Foundation during the years in-question. As to (1), this same authority says that “ ‘indebtedness’ as used in the Code implies an existing unconditional and legally enforceable obligation to . pay.” Id. § 26.04, p. 16. As to (2), “interest” is given its ordinary meaning. For tax purposes as well as “In the business- world ‘interest on indebtedness’ means compensation for the use or forbearance of money” or the “amount which one has contracted to pay for the use of borrowed money.” Deputy v. Du Pont, 1940, 308 U.S. 488, 497-498, 60 S.Ct. 363, 368, 84 L.Ed. 416. This is best evidenced by looking to the notes which clearly" }, { "docid": "11930811", "title": "", "text": "paid on their original maturity date by “outside” financing which would have been commercially attractive. The consideration for the notes (property transferred from Foundation to Taxpayer) was entirely adequate. The trial Judge found, based on evidence which he was entitled to credit and which we have no basis to reject, that 'Foundation accepted the notes intending to collect them and Taxpayer gave the notes intending to pay them. The amount of the notes was gradually, but consistently, reduced and the ratio of debt to value of the property continually enhanced. The fact that years later the notes were ultimately cancelled and the outstanding amount thereof contributed to Taxpayer’s paid-in surplus while a factor, is certainly not enough to compel the trier to disregard all of the other indicia of a real debt for both principal and interest. Little more need be said about this phase of the case. Both Taxpayer and the Government rely on the language of several of the same cases, e. g., Rowan v. United States, 5 Cir., 1955, 219 F.2d 51; Sun Properties, Inc. v. United States, 5 Cir., 1955, 220 F.2d 171; Farley Realty Corp. v. Commissioner, 2 Cir., 1960, 279 F.2d 701, and there are many cases holding both pro and con on this issue, e. g., United States v. Title Guarantee & Trust Co., 6 Cir., 1943, 133 F.2d 990; Gooding Amusement Co. v. Commissioner, 6 Cir., 1956, 236 F.2d 159; Kraft Foods Co. v. Commissioner, 2 Cir., 1956, 232 F.2d 118, some of which have attempted to set down guidelines for the future, e. g., Brake & Electric Sales Corp. v. United States, D.C.Mass., 1960, 185 F.Supp. 1, aff’d, 1 Cir., 1961, 287 F.2d 426. It would serve no useful purpose for us to distinguish the eases relied on by the Government or to determine whether in the light ’ of our holdings we would accept them as authoritative. But we hold that under the circumstances of this record, a bona fide indebtedness existed and Taxpayer is entitled to deduct the interest it actually paid to Foundation. II. We come now to" }, { "docid": "14037186", "title": "", "text": "be a loan. Rowan v. United States, 5 Cir., 219 F.2d 51. The decisive factor is not what the payments are called but what, in fact, they are, and that depends upon the real intention of the parties. United States v. Title Guarantee & Trust Co., 6 Cir., 133 F.2d 990; Gooding Amusement Co. v. Commissioner, 6 Cir., 236 F.2d 159. The indicia relied upon by the government are not controlling. The fact that advancements to a corporation are made without requiring any evidence of indebtedness or fixing any date for repayment; without requiring the payment of any interest; and with the realization that the tangible assets of the corporation were not such, at any given time during the taxable period, as to repay any part of the loan — was not a controlling consideration requiring a conclusion that the advances were not loans, and that a deduction from ordinary income for a bad debt was not properly allowable, when the advances became uncollectible. Lucia Chase Ewing v. Commissioner, 5 T.C.M. 908. Similarly, where a lender was the sole stockholder of the borrowing corporation, the business of which was not prospering, and a substantial part of the money borrowed was used by the corporation for the acquisition of capital assets, the court held that these circumstances, relied upon by the Commissioner, were not sufficient to constitute the advancements a contribution to capital, and were not a basis for disregarding the true intention of the parties to create debts. Alma Spreckels v. Commissioner, 8 T.C.M. 1113. Moreover, when a partnership acquires capital stock in a corporation in order to help obtain liquor needed in the partnership business, consisting of the sale of liquor for profit, it was held that the stock was purchased without investment intent, but only for business purposes, Hogg v. Allen, D.C.Ga., 105 F.Supp. 12, affirmed Edwards v. Hogg, 5 Cir., 214 F.2d 640, and where a taxpayer was required to purchase shares of stock in one of its supplier corporations in order to obtain merchandise which otherwise would go to a competitor, the court ruled that it" }, { "docid": "23368902", "title": "", "text": "characterization would seem to be that demand notes held by someone with a voice in management are a type of long-term investment. See, e. g., Taft v. C. I. R., 314 F.2d 620 (9th Cir. 1963). . This consistent treatment does not, of course, estop either the Commissioner or the taxpayer any more than the decision in this case controls the tax status of repaid principal on these loans in the hands of the remaining Fin Hay shareholders. The Government may well have sought to challenge these corporate interest deductions before challenging the individuals’ returns as a matter of tactics, but this, and the question of the tax consequences of the liquidation of the remaining loans in 1962-1963, should not influence the decision in the present case, see Budd Company v. United States, 252 F.2d 456, 458 (3rd Cir. 1957). . See, e. g., Farley Realty Corporation v. C. I. R., 279 F.2d 701, 704 (2nd Cir. 1960) ; Wilshire & West Sandwiches v. Commissioner of Int. R., 175 F.2d 718, 720 (9th Cir. 1949). As noted in P. M. Finance Corporation v. C. I. R., supra, at 789, control of the corporation re quires the courts to examine the shareholder-creditor relationship with great care but “the decisions [footnote omitted] in most instances have required some further indication that sole or pro-rata shareholder ‘debt’ is in reality equity rather than indebtedness.” . See, e. g., Tomlinson v. 1661 Corporation, supra; Mullin Building Corporation v. C. I. R., supra; Farley Realty Corporation v. C. I. R., supra; McSorley’s Inc. v. United States, supra. . See, e. g., United States v. Henderson, supra, relied upon by the majority, involving an iron castings foundry. . See, e. g., United States v. Snyder Brothers Company, supra; Gooding Amusement Co. v. C. I. R., supra. . See, e. g., Tomlinson v. 1661 Corporation, supra, at 297. Uncontroverted testimony of one creditor-stockholder showed that he regarded the 6% return as a good investment (it is noted that interest was always paid on time) and nothing on the record or in any other cases showing interest rates" } ]

[ { "docid": "20142822", "title": "", "text": "that they are requesting a set-off from any damages the plaintiff might receive. Accordingly, we will not strike the defendants’ first affirmative defense on this basis. Next, the plaintiff moves to strike the defendants’ second affirmative defense of “unclean hands” as inapplicable to Title VII claims as a matter of law. Plaintiff points out that in a Title VII cause of action, absent direct evidence of a discriminatory animus, the plaintiff must establish a prima facie case, then the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions. Once the employer meets her burden, the plaintiff is afforded the opportunity to show that the employer’s stated reason was pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973). From this the plaintiff reasons that the affirmative defense of “unclean hands” is inappropriate for all Title VII claims. Indeed, the Seventh Circuit has found that “equitable defenses such as unclean hands may also have more limited play in free-speech cases” and other first amendment cases. Shondel v. McDermott, 775 F.2d 859, 869 (7th Cir.1985). However, the Court did not go so far as to say that the doctrine of “unclean hands” should never be allowed as an affirmative defense in Title VII suits. Moreover, at least one court in this circuit has applied the doctrine of unclean hands to bar a plaintiff’s Title VII claim. Women Employed v. Rinella & Rinella, 468 F.Supp. 1123, 1128 (N.D.Ill.1979) (plaintiff denied equitable relief from sexual discrimination claim where, following her termination, she embarked on a program to harass and embarrass her former employer). Accordingly, we will not strike the defendants’ defense of “unclean hands” as inapplicable to Title VII claims. Still, plaintiff argues that the defendants’ defense of “unclean hands” is not properly pled under Rule 9(b) which requires allegations of fraud to state the time, place, and specific contents of alleged false statements. Bobbitt v. Victorian House, Inc., 532 F.Supp. 734, 737 (N.D.Ill.1982); Bruss Co. v. Allnet Communication Services, Inc., 606 F.Supp. 401, 405 (N.D.Ill.1985); Fed.R.Civ.P. 9(b). We agree that" } ]

[ { "docid": "15661399", "title": "", "text": "seq. (1976). Title VII provides in pertinent part: “It shall be an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s . . sex it 42 U.S.C. § 2000e-2(a)(l). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court considered the order and allocation of proof in actions challenging employment discrimination under Title VII. The Court stated: “The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of discrimination. The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the [employer’s action]. ... [If the employer’s] reason . . suffices to meet the prima facie case, . . [the employee must] be afforded a fair opportunity to show that [the] stated reason . was in fact pretext.” Id. at 802-04, 93 S.Ct. at 1824-1825. The McDonnell Douglas Court also said that a Title VII plaintiff could demonstrate a prima facie case of discrimination by proving the following: “(i) that he belongs to a [group protected by the statute]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802, 93 S.Ct. at 1824. The elements specified above need not be present in every Title VII case, however. As the Supreme Court emphasized in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977): “[T]he McDonnell Douglas pattern is [not] the only means of establishing a prima facie case of individual discrimination. Our decision in that case . did not purport to create an inflexible formulation. We expressly noted that ‘[t]he facts necessarily will vary in Title VII cases, and the specification . of" }, { "docid": "21876317", "title": "", "text": "Rule 56(f) motion rested on an error of law. Thus, “[Ijittle turns ... on whether we label review of this particular question abuse of discretion or de novo,” for “[a] district court by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). II. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set out a burden-shifting approach to employment discrimination claims in cases where the plaintiff lacks direct evidence of discrimination. To proceed under McDonnell Douglas, the plaintiff “must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.” Id. at 802, 93 S.Ct. 1817. If the plaintiff meets this burden, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for its action. Id. If the employer succeeds, then the plaintiff must “be afforded a fair opportunity to show that [the employer’s] stated reason ... was in fact pretext” for unlawful discrimination. Id. at 804, 93 S.Ct. 1817. The McDonnell Douglas framework applies to both Title VII and ADEA claims. Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C.Cir.2004). “[Establishing a prima facie case,” the McDonnell Douglas Court explained, may be done by showing (i) that [the plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. In setting forth these requirements, however, the Supreme Court emphasized that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations.” Id. n. 13. In a similar vein, the Court has made clear that “[t]he burden of establishing a prima facie" }, { "docid": "14824597", "title": "", "text": "cases of employment discrimination, an action under the ADEA is a three-step process. First, the plaintiff must establish a prima facie case. Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443 (11th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985). Second, the defendant has burden the proving that a legitimate, nondiscriminatory reason controlled its decision to demote the plaintiff. Upon such a showing by defendant, the burden shifts back to the plaintiff to carry the ultimate burden of proving that he was the victim of intentional age discrimination and that the reasons advanced by the defendant were pretextual. See, e.g., Archambault v. United Computing Systems, Inc., 786 F.2d 1507, 1512 (11th Cir.1986). 1. The Prima Facie Case At the first stage, a plaintiff can establish discrimination through one of three commonly accepted means: By direct evidence of discriminatory intent; by meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); or through statistical proof. Here plaintiff makes no showing of direct evidence of discriminatory intent. Nor does plaintiff put forward statistical proof of a pattern of discrimination. Thus the court is only concerned with the McDonnell Douglas elements. a) McDonnell Douglas The Court of Appeals for the Eleventh Circuit has adopted a variation of the quadripartite test set out for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this formulation, a plaintiff can establish a prima facie case under the ADEA with circumstantial evidence by proving: (1) that she or he is a member of the protected group ; (2) that adverse employment action was taken against her or him; (3) that she or he was replaced by a person outside the protected group; and (4) that she or he was qualified for the position for which she or he was rejected. Carter v. City of Miami, 870 F.2d 578 (11th Cir.1989), Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988). The Eleventh Circuit has" }, { "docid": "6732219", "title": "", "text": "AT & T’s motion as one for summary judgment since the parties have presented matters outside the pleadings not excluded by the Court. Fed. R.Civ.P. 12(c). 1. Title VII Claim Faced with a motion for summary judgment, plaintiff in a Title VII/disparate treatment action must meet the initial burden of submitting evidence establishing a prima facie case of discrimination, thereby creating a presumption of discrimination which, if unrebutted, would require a verdict in plaintiff’s favor. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The elements of a prima facie case are that plaintiff (1) belongs to a racial minority or is a member of a protected class, (2) was qualified for the job and/or was satisfying the employer’s normal requirements in his or her work, (3) that despite those qualifications, plaintiff was discharged or terminated in that position, and (4) that in a typical termination case, plaintiff was replaced by a non-minority worker. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The Second Circuit, recognizing that identification of the protected class is difficult in many cases, held in Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985), that Title VII does not require proof that plaintiff was replaced by a person outside the protected class. While the burden of persuasion remains on plaintiff throughout a Title VII litigation, Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, once plaintiff has presented her prima facie case, the burden of production shifts to the employer to articulate some “legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer articulates a legitimate, nondiscriminatory reason in rebuttal, plaintiff must be given the opportunity either (1) to show directly that “a discriminatory reason more likely motivated the employer” (i.e., a “mixed motives” case), Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, or (2) to show indirectly that “the employer’s proffered" }, { "docid": "15749061", "title": "", "text": "to Kamberos and reaffirming GTE’s position that the incident was caused by a misunderstanding of the Eight-Hour Law. Kamberos testified that she never received the letter and that the first time she saw the letter was in 1973 when she asked the EEOC to attempt to conciliate her dispute with GTE. Neither the EEOC nor Kamberos took any action on her complaint for over four years. On January 3, 1974 the EEOC issued a “right to sue” letter and plaintiff filed her complaint in the Northern District of Illinois on January 18, 1974. I The appropriate legal standard outlining the burden of proof which a Title VII plaintiff must meet was established by the Supreme Court in McDonnel Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Furnco Construction Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); Board of Trustees of the Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that [s]he belongs to [that sex discriminated against]; (ii) that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite h[er] qualifications, [s]he was rejected; and (iv) that, after h[er] rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnel, supra, 411 U.S. at 802, 93 S.Ct. at 1824. “The burden must then shift to the mployer to articulate some legitimate, nondiscriminatory reason for the employer’s rejection [of the plaintiff].” Id. If the employer does offer some legitimate reason for the rejection, the plaintiff must then be “afforded a fair opportunity to show that [the employer’s] stated reason for [the plaintiff’s] rejection was in fact pretext.” Id. at 804, 93 S.Ct. at 1825. Examining the evidence in light of these standards, Kamberos satisfied the requirements for a prima facie showing of sexual discrimination. The" }, { "docid": "5697127", "title": "", "text": "of law in no way indicate that the court properly defined the requirements of the plaintiff’s prima facie case, or the burden the employer bears in rebutting a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 805, 93 S.Ct. 1817, 1824, 1825, 36 L.Ed.2d 668 (1973); Hackley v. Roudebush, 520 F.2d 108, 157-158 (D.C. Cir. 1975). We therefore must remand the case to the District Court to enable it to conduct further evidentiary proceedings in accordance with the proper allocation of burden of proof. However, adjusting the general burden of proof principles of McDonnell Douglas Corp. v. Green, supra, to unusual factual situations is a matter of some difficulty, and this sexual harassment claim is indeed exceptionally unusual among Title VII cases. We therefore shall attempt to guide the District Court in this matter. Recognizing the difficulty a plaintiff faces in proving the motives behind an employer’s actions, McDonnell established the general principle that in an employment discrimination case under Title VII the employee must first make out a prima facie case. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. * * * 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). As the Supreme Court noted in a later case, this prima facie showing does not in itself prove illegal discrimination. Rather, it constitutes proof of actions taken by the employer from which we can reasonably infer a discriminatory animus, because common experience tells us that such actions normally have a discriminatory motive. Furnco Construction Corp. v. Waters, 438 U.S. 567, 579-580, 98 S.Ct. 2943, 2950-2952, 57 L.Ed.2d 957 (1978). Once the prima facie case is made out, the burden shifts to the employer to articulate legitimate, nondiscriminatory reasons for denying the applicant the position. McDonnell Douglas Corp. v. Green, supra," }, { "docid": "8026926", "title": "", "text": "was sued in her official capacity, are immune to suit in Federal court on state law claims under the Eleventh Amendment of the United States Constitution. II. A. Summary Judgment as to the Title VII Claim. The framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) requires the plaintiff initially to establish a prima facie case of discrimination. To establish a prima facie case of retaliatory discharge under 42 U.S.C. § 2000e-3, the plaintiff must show: (1) he opposed an employment practice that was unlawful within the meaning of Title VII or he participated in a proceeding under Title VII; (2) he suffered an adverse action by his employer; (3) because of his opposition or participation. See Rucker v. Higher Educational Aids Bd., 669 F.2d 1179, 1182 (7th Cir.1982). The plaintiff must show that the employer would not have taken the adverse action “but for” his opposition or participation. McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924, 928 (7th Cir. 1984). Successfully establishing a prima facie case gives rise to a rebuttable presumption of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. To rebut the presumption of discrimination, the defendant must articulate a legitimate, non-retaliatory reason for its actions. Id. The defendant’s burden in presenting a legitimate, non-discriminatory reason for its actions is only a burden of production; the burden of persuasion rests at all times on the plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Thus, “[i]t is sufficient that the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for [the allegedly discriminatory action]. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” Id. If the defendant rebuts the presumption of discrimination by articulating legitimate, nondiscriminatory reasons for its" }, { "docid": "23425319", "title": "", "text": "after her appointment. II. PROMOTION OF A MEMBER OF PLAINTIFF’S PROTECTED CLASS In order to prevail in a Title VII disparate treatment case, a plaintiff must first establish a prima facie case of discrimination. The burden of production then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment decision. If the defendant carries its burden, the plaintiff is then afforded an opportunity to demonstrate that the “ ‘assigned reason’ was ‘a pretext or discriminatory in its application.’ ” Lynn v. Regents of the University of California, 656 F.2d 1337, 1341 (9th Cir.1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S.Ct. 1817, 1827, 36 L.Ed.2d 668 (1973)), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 59 (1982). In the present case, the district court did not examine AT & T’s articulated nondiscriminatory reason — that Gonzales was better qualified — or consider whether Diaz’s evidence sufficiently rebutted this defense because it determined that Diaz could not, as a matter of law, establish a prima facie case. Its reason for reaching this conclusion was that the person ultimately hired was a member of the same protected class as Diaz. In order to establish a prima facie case, a plaintiff must offer evidence that “give[s] rise to an inference of unlawful discrimination.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). One common way a plaintiff can establish an inference of discrimination is by demonstrating that the four requirements of the McDonnell Douglas test are met: (1) that the plaintiff belongs to a class protected by Title VII; (2) that the plaintiff applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite being qualified, the plaintiff was rejected; and (4) that, after the plaintiff’s rejection, the position remained open and the employer continued to seek applicants from persons of comparable qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Under the traditional McDonnell Douglas test," }, { "docid": "12295936", "title": "", "text": "non-moving party and drawing all reasonable inferences in its favor, that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011) (quoting Fed.R.Civ.P. 56(a)). I. Title VII claims are generally “analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.2008). At the first stage of McDonnell Douglas, a plaintiff “bears the burden of establishing a prima facie case of discrimination,” which includes demonstrating that “he suffered an adverse employment action ... under circumstances giving rise to an inference of discriminatory intent.” Id. “Once the prima facie case has been shown, ‘the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason’ for the adverse employment action.” United States v. Brennan, 650 F.3d 65, 93 (2d Cir.2011) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). A plaintiff may also attempt more directly to “convince the trier of fact that an impermissible criterion in fact entered into the employment decision” by “focus[ing] his proof directly at the question of discrimination and prov[ing] that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the employment decision.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.1992) (citation omitted). If the employee does so, he is “entitled to succeed subject only to the employer’s opportunity to prove its affirmative defense, that is, that it would have reached the same decision as to [the employee’s employment] even in the absence of the impermissible factor.” Id. (internal quotation marks and citations omitted). Marasehiello’s central contention is that Ricci establishes that defendants’ actions violated Title VII. Repeated references in his brief to a “Ricci theory” or “Ricci analysis” suggest that he is arguing that the case established a new framework for Title VII litigation. It did not. As we have explained, “Ricci does not impose a new ... summary-judgment burden-shifting framework, but" }, { "docid": "22786032", "title": "", "text": "court’s] erroneous instruction cannot be ruled harmless.” Miller v. Universal City Studios, 650 F.2d 1365, 1372 (5th Cir.1981). The court’s characterization of the individual defendants’ actions as “legal actions” could only have left the jury with the impression that the judge had already determined that these individuals had done no wrong. Although the jury was later instructed on the legal standards to apply in reaching its verdict, the later instruction did not directly address the prior characterization of the individual defendants’ actions as “legal.” We cannot therefore be absolutely certain that the jury was not misguided by the district court’s words and actions. Consequently, we hold that the district court’s statements constituted prejudicial error. C. Directed verdict on Title VII, section 1983 racial discrimination — insufficiency of evidence A Title VII plaintiff has the initial burden to establish a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Subsequently, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the employer’s actions. Id. Appellants asserted a defense of “business necessity” as their nondiscriminatory reason for firing Busby. However, a defendant may not assert a business necessity justification for its actions merely as a pretext for discriminatory conduct. See id. at 804, 93 S.Ct. at 1825. Nevertheless, in order to prevail over a defendant who has raised a “business necessity” defense, a plaintiff must prove that the nondiscriminatory reason for termination offered by the defendant was merely pretextual or discriminatorily applied. See id. at 806, 93 S.Ct. at 1826. According to our circuit’s precedent: Section 1983 actions challenging racial discrimination under the equal protection clause and Title VII disparate treatment cases both require a showing of discriminatory motive, and the nature of a prima facie showing is the same in either case: “... simply proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations.” Lee" }, { "docid": "18648232", "title": "", "text": "as citizens of the United States”). Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. See infra, at 1861. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory. Compare e. g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S.Ct. 849, 853-854 [28 L.Ed.2d 158] with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806, 93 S.Ct. 1817, 1824-1826 [36 L.Ed.2d 668]. 431 U.S. at 335, 97 S.Ct. 1854, n.15. The Title VII claims of disparate treatment must be evaluated in accordance with the leading decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in which the Supreme Court held: The complaint in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complaint’s qualifications.. . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.... [If a legitimate, nondiscriminatory basis for the employer’s action is articulated, the plaintiff must] be afforded a fair opportunity to show that [the employer’s] stated reason for [the plaintiff’s] rejection was in fact pretext [for discrimination]. 411 U.S. 802-804, 97 S.Ct. 1824-1825. Proving a prima facie case under McDonnell Douglas establishes the critical finding of discriminatory motive because such a showing creates “an inference that an employment decision was based on a discriminatory criterion illegal under the act.” Teamsters, 431 U.S. at 358, 97 S.Ct. at 1866. In Furnco Construction Corp. v." }, { "docid": "12803311", "title": "", "text": "lower wage to her than to such male employees. The court concluded, however, that sex was not a factor in Tropicana’s employment decisions and actions regarding the compensation of Feazell and these seven male employees. The court set forth the qualifications, years with Tropicana, and salaries of the seven male supervisors and compared their salaries and raises at various points to those of Feazell. It concluded that the differences between Feazell’s salary and that of each male supervisor were based on factors other than sex, including CPA certification, length of service with Tropicana, annual merit raises, promotions, participation in the bonus-buyout, years as supervisor, prior accounting experience, college degree in accounting, or refusal to accept a lower initial salary at Tropicana. I. BURDEN OF PROOF ON TITLE VII CLAIMS Feazell contends that the district court erred when it allocated the burdens of proof and production according to the structure set forth in McDonnell Douglas under which the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for wage disparities once a plaintiff has established a prima facie case of discrimination under Title VII, but the burden of persuasion always remains with the plaintiff alleging sex discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In County of Washington, Oregon v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) the Supreme Court held that the “Bennett Amendment” to Title VII extended the protection of the four affirmative defenses of the Equal Pay Act to Title VII actions for sex-based wage discrimination and therefore that wage differentials attributable to one of the four affirmative defenses are not unlawful employment practices under Title VII. The Court, however, explicitly refrained from deciding how burdens of proof or production should be structured in a Title VII action premised on a claim of sex-based wage discrimination and the Eleventh Circuit has yet to reach the issue. Feazell contends that when a Title VII claim" }, { "docid": "23277556", "title": "", "text": "claims as well as his retaliation claim. Of course summary judgment may be granted only if the record, including pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits indicate there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We review the district court’s decision de novo, and all factual inferences are to be taken against the moving party. See Powers v. Dole, 782 F.2d 689, 694 (7th Cir.1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). This court applies the analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in reviewing grants of summary judgment in Title VII actions. The McDonnell Douglas case sets out the order and allocation of proof in an employment discrimination action. The plaintiff in a Title VII action must first establish a prima facie case of discrimination. In this case Hughes must show that (1) he belongs to a protected group; (2) he applied for and qualified for a job in which the employer was seeking applicants; (3) despite his qualifications, he was rejected; and (4) the employer hired someone outside of the protected group. See 411 U.S. at 802, 93 S.Ct. at 1824. If a Title VII plaintiff establishes these four elements, McDonnell Douglas then provides that the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for denying a job position to the plaintiff while granting it to someone else. 411 U.S. at 802-03, 93 S.Ct. at 1824. Last, if the employer articulates a legitimate, nondiscriminatory reason for rejecting the Title VII plaintiff, the burden of production shifts back to the plaintiff, and the plaintiff must show that the employer’s articulated reason is pretextual. Having set out the basic framework for our review of the district court’s decisions, we will first examine Hughes’s claim of discrimination concerning the AHHO position, and then we will look at his claim concerning the HAF position." }, { "docid": "23214612", "title": "", "text": "L.Ed.2d 202 (1986). We have emphasized that the trial court must be especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case, because the employer’s intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination. See Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir.1996); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994). We review de novo the district court’s grant of summary judgment, applying the same standards the trial court did. Appellant’s challenge to her employer’s conduct, which she alleges discriminated against her, is limited on this appeal to her claims under the Equal Pay Act and Title VII. One of the main substantive differences between these two laws, which both provide remedies to victims of proven acts of sex discrimination, is that the former provides strict liability while the later requires proof of discriminatory intent. After a plaintiff has made out a prima facie case under Title VII, the familiar burden of going forward shifts, as set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to the employer to “articulate some legitimate, nondiscriminatory reason for the [negative decision affecting an employee].” Id. at 802, 93 S.Ct. 1817. The plaintiff shoulders the ultimate burden of proving that the employer’s articulated reason was pretextual. See Furnco Const. Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). The purpose behind the enactment of the EPA was to legislate out of existence a long-held, but outmoded societal view that a man should be paid more than a woman for the same work. The EPA required employers to pay equal wages for equal work. See Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Under the Equal Pay Act once a plaintiff makes out a prima facie case, she need'not prove a discriminatory animus on her employer’s part. Instead, the statute affords the employer four affirmative defenses and the burden" }, { "docid": "23229443", "title": "", "text": "L.Ed.2d 407 (1993). A Title VII plaintiff can satisfy her burden of proof by two avenues: (1) she may present direct evidence of discriminatory intent or, because of the difficulty in directly proving discrimination, (2) she may use the indirect, burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir.1996). Gonzalez relies upon the McDonnell Douglas avenue. Under the McDonnell Douglas burden-shifting approach, Gonzalez must initially establish a prima facie case of racial and/or ethnic discrimination by a preponderance of the evidence. Pasqua, 101 F.3d at 516. To establish a prima facie case of racial discrimination requires Gonzalez to show she was (1) in a protected class; (2) performing her job satisfactorily; (3) the subject of a materially adverse employment action; and (4) others outside of the protected class were treated more favorably. Young v. Will County Dept. of Public Aid, 882 F.2d 290, 293 (7th Cir.1989). Once Gonzalez establishes a prima facie case, the burden shifts to Ingersoll to “articulate some legitimate, nondiscriminatory reason” for its action. Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1281 (7th Cir.1977), citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If Ingersoll meets its burden of establishing a legitimate, nondiscriminatory reason for the layoff, Gonzalez then has an opportunity to show that the articulated reason was in fact pretext. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The ultimate burden of proof remains with Gonzalez at all times. See, e.g., Kirk v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir.1994). Ingersoll claims it is entitled to summary judgment on Gonzalez’s Title VII claim because Gonzalez failed to provide any evidence that others outside the protected class were treated more favorably than Gonzalez. The district court agreed, finding that Gonzalez failed to establish a prima facie case of discrimination because she could not point to a similarly situated employee outside the protected class who had received more favorable treatment. Despite finding the allegations were not" }, { "docid": "6503746", "title": "", "text": "at any time before the case has been submitted to the jury. Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134 (2d Cir.1999). A court may grant a motion for judgment as a matter of law if there is no legally sufficient evidentiary basis to support the non-moving party’s claim or defense. Id.; Fed.R.Civ.P. 50(a). In assessing the merits of a Rule 50(a) motion, courts must view the evidence in the light most favorable to the non-moving party — in this case, the City — and draw all reasonable inferences in its favor. Wimmer, 176 F.3d at 134. DISCUSSION Applying the relevant standard of review here, the Court finds that any reasonable jury could have concluded that, as a threshold matter, Sanders failed to establish a prima facie case for any of her claims under Title VII. In addition, any reasonable jury could have been persuaded by the overwhelming evidence that the allegedly unlawful actions on the part of the City were taken for legitimate, nondiscriminatory reasons. Therefore, Sanders’s motion for judgment as a matter of law is denied in its entirety. All of Sanders’s claims, although conceptually distinct, are grounded in Title VII. As such, all of Sanders’s claims require a showing of the same core elements as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In view of the plaintiffs claims and the specific circumstances present there, the Supreme Court held in McDonnell Douglas that [t]he complainant in a .Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Assuming that a complainant establishes a prima facie" }, { "docid": "20344160", "title": "", "text": "of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) held that the Eleventh Amendment permits § 1983 suits against municipalities under certain circumstances. The Supreme Court, however, sanctioned suits only against “local government units which are not considered part of the State for Eleventh Amendment purposes.” 436 U.S. at 690, n. 54, 98 S.Ct. at 2035, n. 54. The four named New York State agencies in this case are clearly “part of the State.” Thus, plaintiff’s § 1983 suit against them must be dismissed. 3. Title VII (42 U.S.C. § 2000e-2(a)) Plaintiff alleges that the DOH, OHSM’s refusal to promote him to the position of fiscal analyst was based upon the fact that he is an Egyptian Arab. Section 2000e-2 of Title VII provides in pertinent part: (a) It shall be an unlawful employment practice for an employer— (1) to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... national origin; or (2) to limit ... or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s ... national origin. 42 U.S.C. § 2000e-2(a)(l) & (2). In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court described the burden of proof in a Title VII case as follows: (1) Plaintiff has the initial burden of establishing a prima facie case of discrimination; (2) if plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to “articulate some legitimate non-discriminatory reason” for the non-selection of plaintiff; and (3) if the employer does articulate such a reason, the burden shifts back to the plaintiff to prove that the reason given by the employer is not really legitimate and nondiscriminatory but is merely pretextual. Id. at 802-04, 93 S.Ct. at 1824-1825. Here, plaintiff has succeeded in presenting a prima facie case by demonstrating that (1) he is" }, { "docid": "7364606", "title": "", "text": "these claims are dismissed. E. Title VII Claims As previously noted, the same facts and events support Plaintiffs claims of race-based discrimination and retaliation. Additionally, the burden shifting analysis required to support the claims is virtually identical, therefore, the Court will consider Plaintiffs discrimination claim under Title VII, insofar as it relates to the rejection of her medical documentation and her termination. The burden shifting rubric for analyzing Title VII discrimination claims, set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is well-settled. The same burden shifting analysis applies to Title VII retaliation claims. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir.1998). Plaintiff initially has the de minimis burden of presenting a prima facie case of discrimination. If this burden is satisfied, the burden shifts to the defendant “to articulate some legitimate nondiscriminatory reason” for the complained of action. Id. at 802, 93 S.Ct. 1817. To satisfy this intermediate burden, “the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory [or retaliatory] animus.” Texas Dep’t of Community Affairs v. Bur-dine, 450 U.S. 248, 257, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The defendant’s burden of production is not a demanding one, see Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir.1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998), and the ultimate burden of persuasion always remains with the plaintiff. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the defendant offers a legitimate, non discriminatory explanation for its employment decision, the burden shifts back to the plaintiff, who must be “afforded a fair opportunity to show that petitioner’s stated reason for [the adverse action] was in fact pretext.” McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. The plaintiffs burden to prove that the defendant’s proffered reason is “pretextual” merges with the ultimate burden of proving intentional discrimination." }, { "docid": "7819236", "title": "", "text": "Start positions. The district court held, in effect, that even if Burnett established a prima facie case of disparate treatment under Title VII, the CADC successfully rebutted the presumption of discrimination by articulating “legitimate, nondiscriminatory reason[s]” for its decision to discharge Burnett and its refusal to offer him the other positions. II. The basic allocation of the burden of proof in Title VII employment discrimination cases was initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, and its progeny, the Title VII plaintiff bears the burden of establishing a prima facie case of disparate treatment. “The plaintiff must prove by a preponderance of the evidence that [he or she] applied for an available position, for which [he or she] was qualified, but rejected under circumstances which give rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Once the plaintiff establishes the prima facie case, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the employment decision. McDonnell Douglas v. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1824. The effect of this intermediate evidentiary burden is to require the employer to rebut the presumption of discrimination created by the establishment of the plaintiff’s prima facie case. Burdine, supra, 101 S.Ct. at 1094. The employer successfully rebuts the presumption of discrimination when it “clearly set[s] forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.” Id. The employer’s explanation “must be legally sufficient to justify a judgment ...” in its favor. Id. Additionally, the employer “cannot meet its burden merely through an answer to the complaint or by argument of counsel.” Id., 101 S.Ct. at 1094 n.9. Moreover, the employer’s “explanation of its legitimate reasons must be clear and reasonably specific.” Id., 101 S.Ct. at 1096. Finally, if the employer rebuts the presumption of discriminatory treatment, then the plaintiff “retains the burden of persuasion .... [The plaintiff] must have the opportunity to demonstrate" }, { "docid": "22011036", "title": "", "text": "that Pepsi violated the Equal Pay Act. Pepsi failed to adequately assert an affirmative defense to establish that no genuine issues of material fact exist or that Pepsi is entitled to summary judgment as a matter of law. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed. R.Civ.P. 56(e)). Pepsi’s motion for summary judgment on this count is denied. 3. Title VII claims When a plaintiff does not present direct evidence of discriminatory animus, courts analyze a plaintiffs claims pursuant to a pretext theory of discrimination. In Title VII employment discrimination actions invoking the pretext theory of discrimination, courts apply the McDonnell Douglas burden shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pursuant to McDonnell Douglas, a plaintiff has the initial burden to establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. To establish a prima facie case of discrimination, plaintiff must provide evidence that; (1) She was a member of a protected class; (2) she was qualified for the position(s) applied for; and (3) another person outside of the protected class was treated more favorably. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir.2006) (citing McDonnell Douglas, 411 U.S. 792 at 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668). If plaintiff succeeds in establishing her prima facie case, the burden shifts to defendant employer to proffer “legitimate non-discriminatory” reason for its actions. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 n. 2 (3d Cir.1997). If defendant meets this burden, the burden again shifts to plaintiff to demonstrate, by a preponderance of the evidence, that the employer’s rationale is pretextual. Id. at 804, 93 S.Ct. 1817. To do this, plaintiff must “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). If a defendant carries" } ]

[ { "docid": "6791742", "title": "", "text": "interest to the claimants. 11 U.S.C. § 726(a)(5). A claim includes compensable attorney’s fees payable from the estate under Section 330(a) of the Bankruptcy Code. Id. §§ 726(a)(1), 507(a)(1), 503(b)(2). Section 726(a)(5) provides that interest on claims accrues “from the date of the filing of the petition.” Id. § 726(a)(5). For claims existing prior to the filing of the bankruptcy petition, a date-of-filing accrual date is appropriate and mandated under the plain language of the statute. See S.Rep. No. 95-989, 95th Cong., 2d Sess. 5, reprinted in 1978 U.S.Code Cong. & Admin. News, 5787, 5883 (Section 726(a)(5) “provides that postpetition interest on prepetition claims is ... to be paid to the creditor”). For a claim to Section 330(a) attorney’s fees arising subsequent to filing, however, a literal application of the statute makes little sense; “[ijnterest cannot accrue on fees for services which have not yet been performed,” Riverside-Linden II, 111 B.R. at 303. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025-26, 76 L.Ed.2d 157 (1983) (“[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute”); Bechtel Constr., Inc. v. United Bd. of Carpenters & Joiners, 812 F.2d 1220, 1225 (9th Cir.1987) (statutes “should never be construed as establishing statutory schemes that are illogical, unjust, or capricious”). E & H concedes that a date-of-filing accrual date for post-petition awards of attorney’s fees could not have been intended by Congress, but argues that such interest accrues from the time the fees are invoiced. Crake contends that interest under Section 726(a)(5) should not accrue until the date the bankruptcy court awards the fees. The Bankruptcy Court and BAP agreed with Crake. See 89 B.R. at 850, 111 B.R. at 303. The BAP reasoned: Since the [attorney’s] fees and costs are not entitled to be treated as an administrative expense until the date the court awards the fees and costs, interest, which is paid under § 726(a)(5) based on the administrative expense status" } ]

[ { "docid": "1108013", "title": "", "text": "Comstock Financial Services, Inc., Ill B.R. 849, 860 (Bankr.C.D.Cal.1990); and Shaffer Furniture, supra, 68 B.R. at 830. Therefore, payment of interest to at least holders of unsecured claims against the Debtor, pursuant to 11 U.S.C. § 726(a)(5), is appropriate. Courts have recognized that administrative claims, including attorneys’ fees pursuant to 11 U.S.C. § 330(a), are entitled to interest under § 726(a)(5) when there is a surplus in the estate. See In re Riverside-Linden Investment Co., 945 F.2d 320, 323 (9th Cir.1991); and In re Beck, 128 B.R. 571, 573 (Bankr.E.D.Okla. 1991). But, while determining that administrative claims are entitled to interest, the courts have nevertheless been faced with a quandary. Specifically, the courts are required to pay interest under § 726(a)(5) “at the legal rate from the date of the filing of the petition on any claim paid under ... this subsection” (emphasis added). However, professional compensation allowable under § 330(a) often does not arise as a claim until near or at the end of the case, when a court enters a fee award. In Riverside-Linden, supra, the court addressed this dilemma. There, the attorney for a Chapter 7 trustee requested § 726(a)(5) interest from the date that the fees and costs were invoiced, id. at 322, which we note is a more modest request than that of the instant Trustee on behalf of herself and her special counsel, who proposes to have interest accrued from the date of the professionals’ respective appointments. Nevertheless, noting that § 330 claims do not arise until after the filing of the petition, when a court enters a fee award, the court concluded that, in the context of claims pursuant to § 330(a), literal application of allowance of interest for claims “from the date of filing” makes “little sense.” Id. at 323. The court further stated that statutes “should never be construed as establishing statutory schemes that are illogical, unjust or capricious.” Id. at 324. Therefore, the court concluded that, in order to provide a logical application of § 726(a)(5) to § 330(a) claims, since “[i]t is not until the fees have been awarded" }, { "docid": "12843950", "title": "", "text": "for payment of interest from the date of the filing of the petition, which is the alleged date from which Ames claims interest on his commission. However, the Ninth Circuit points out that for a claim to § 330(a) attorney’s fees arising subsequent to filing, a literal application of the statute makes little sense; “interest cannot accrue on fees for services which have not yet been performed.” Boldt v. Crake (In re Riverside—Linden Investment Co.), 945 F.2d 320, 323 (9th Cir.1991) (citing Riverside—Linden II, 111 B.R. 298, 303 (9th Cir. BAP 1990)). The Ninth Circuit also states that statutes “should never be construed as establishing statutory schemes that are illogical, unjust, or capricious.” Id. (citing Bechtel Construction v. United Board of Carpenters & Joiners, 812 F.2d 1220, 1225 (9th Cir.1987)). Ames’ reading of the Bankruptcy Code entitling him to interest on his fee establishes just such an illogical, unjust, and capricious statutory scheme. The Ninth Circuit addresses the issue of interest on fees in In re Riverside—Linden Investment Co., 945 F.2d 320, 323. In the Riverside—Linden case, the attorney for trustee requested interest from the date that the fees and costs were invoiced. The Court of Appeals notes that § 503(b), the provision which defines attorney’s fees as a compensable administrative expense, refers to “compensation and reimbursement awarded under section 330.” 945 F.2d at 324 (citing 11 U.S.C. § 503(b)(2)) (emphasis in original). While finding that § 726(a)(5) might permit interest on certain administrative expenses such as the fees of the attorney for trustee in that case, the Court of Appeals agrees with the Bankruptcy Court and the Bankruptcy Appellate Panel that “since the attorney’s fees and costs are not entitled to be treated as an administrative expense until the date the court awards the fees and costs, interest ... cannot begin to accrue until the date the court awards the fees and costs.” Id. at 324; In re Riverside—Linden Inv. Co. II, 111 B.R. 298 (9th Cir. BAP 1990), aff'g 89 B.R. 848 (Bankr.S.D.Cal.1988). The court concludes that it is not until the fees have been awarded by the" }, { "docid": "6791738", "title": "", "text": "sustained most of Crake’s objections and disallowed fees incurred in opposing Crake’s objection to the final fee application, for interest on fees prior to the date they were awarded, and fees incurred in determining whether it was entitled to interest and the calculations of such interest. See In re Riverside-Linden Inv. Co., 89 B.R. 848, 849-50 (Bankr.S.D.Cal.1988). Although the BAP disagreed in part with the reasoning of the Bankruptcy Court, it affirmed in In re Riverside-Linden Inv. Co., Ill B.R. 298 (9th Cir. BAP 1990) (“Riverside-Linden IT’). E & H filed this appeal. II. We consider whether the Bankruptcy Court erred in disallowing fees incurred opposing unsuccessfully Crake’s objection to E & H’s final fee application and determining that interest on attorney’s fees payable from the estate under 11 U.S.C. § 726(a)(5) accrues on the date the fees are awarded. We will not disturb a bankruptcy court’s award of attorney’s fees absent a finding that the court abused its discretion or erroneously applied the law. Riverside-Linden I, 925 F.2d at 322; In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985). A. Fees incurred opposing Crake’s objection to the final fee application. Crake objected to E & H’s final fee application on several grounds. The Bankruptcy Court sustained most of the objections and this court affirmed in Riverside-Linden I. It is the additional fees incurred by E & H in its unsuccessful opposition to Crake’s objection that we consider in this appeal. E & H argues that the fees were incurred preparing and presenting its fee application, and therefore compensable under In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.1985). We disagree. In Nucorp, the Bankruptcy Court disallowed fees incurred by a law firm preparing and presenting to the court its unopposed fee application. We reversed. The starting point of our decision in Nucorp was 11 U.S.C. § 330(a)(1). This section permits a bankruptcy court to award attorneys reasonable compensation for actual, necessary services rendered ... based on the nature, the extent, and the value of such services, the time spent on such services and the cost of" }, { "docid": "4149468", "title": "", "text": "is dealing with trustee compensation dealt with through the final report and the trustee’s attorney’s separate compensation application, arrives at the same problematic destination, upon a slightly varying ground for departing from statutory text. Thus, in a case of surplus, all previous priorities are entitled to earn interest from the date of the filing of the petition. For claims which arose prior to the date of filing the petition, the date of filing is appropriate for the computation of interest. A literal interpretation of § 726(a)(5) produces uncontemplated results as to interest allowable to attorneys and trustees, whose administrative expenses arise subsequent to filing. For instance, if the attorney for the trustee is not employed until two years into the administration of the case it would, in effect, permit the attorney to earn interest on those fees when he did not perform any work. Equally, the trustee would be encouraged to delay the administration of the estate to allow the accrual of interest in a surplus case. ... the fact remains that an order has yet to be entered to allow the Trustee any compensation. Thus, he has no claim as defined by § 101(5)(A) of the Bankruptcy Code. Common sense dictates that one can not earn interest when no principal exists. Upon the Trustee’s appointment, he had no cognizable right to payment, other than his entitlement to a statutory allowance of $60. It is conceivable that the Trustee could receive no allowance of fees, as his compensation is to be based solely on the amount he distributes to parties in interest. For this reason, the Trustee is not entitled to interest on his fees computed from the date of his appointment. Riverside-Linden is cited as authority for the proposition that interest under § 726(a)(5) does not begin to accrue upon the attorney’s fee award until after the order upon the application. The Eleventh Circuit, in U.S. Trustee v. Fishback (In re Glados), dealt with compensation requests from both the trustee (through the final report) and the trustee’s lawyer (through application), and agrees, in all respects with the preceding authority." }, { "docid": "18510267", "title": "", "text": "specified in, section 507 of this title; “(5) fifth, in payment of interest at the legal rate from the date of the filing of the petition, on any claim paid under paragraph (1), (2), (3), or (4) of this subsection; ...” As administrative expenses under Section 503(b), professional fees that have been allowed after notice and hearing are entitled to first priority under Section 507(a)(1). As the Ninth Circuit recently held in In re Riverside-Linden Investment Co., supra, 945 F.2d at 324: “It is not until the fees have been awarded by the bankruptcy court pursuant to Section 330, therefore, that they become an administrative expense entitling them to treatment as a claim under Section 726(a)(5).... [We] hold that interest on claims of attorney’s fees awarded under section 330(a) accrues from the date they are awarded.” This approach is consistent with the general principle that statutory or judgment interest only begins to accrue when the claim is fixed in amount, and no longer uncertain. See, e.g., Cal.Civ.Code Section 3287 (allowing pre-judgment interest from date that claim arose for “damages certain,” but generally only post-judgment interest on unliquidated claims); 28 U.S.C. § 1961 (providing for post-judgment interest in federal civil actions). Cf. In re D.W.G.K. Restaurants, 106 B.R. 194, 198 (Bankr.S.D.Cal.1989) (awarding interest on unpaid, allowed attorney’s fees in chapter 11 case); In re Energy Cooperative, Inc., 95 B.R. 961, 966, 968 (Bankr.N.D.Ill.1988) (awarding interest on unpaid fees at U.S. Treasury Bill rate from date of order allowing fees). Therefore, if this estate has assets sufficient to reach the fifth-level priority of distribution, the attorneys will be entitled to interest to compensate for any delays in the payment of their allowed fees. CONCLUSION Thus, compensation for unavoidable delay in allowance of fees in bankruptcy cases should be provided in the form of allowance at current, rather than historical, hourly rates. Interest on fees cannot effectively compensate for payment delay in chapter 7 cases, because it is only payable in surplus cases and only accrues after entry of an order allowing fees. Establishing a clear rule permitting interim fee applications in chapter" }, { "docid": "4149514", "title": "", "text": "imposition of a liability which is not exclusively compensatory, but designed to prevent, by coercive effect, arbitrary refusals to pay wages....” The court easily concludes that the purpose of the statute, established within and by its language, is achieved by application of the language of the statute, as written. Of course, the employer had argued, in support of the extra statutory use of judicial discretion allowing courts to fix their our preferred penalty periods, “that a literal construction of the statute would produce an absurd and unjust result which Congress could not have intended.” Given the size of the award in comparison to the amount of unpaid wages ($328,900 versus $412.50), the employer argued that “Congress could not have intended seamen to receive windfalls of this nature without regard to the equities of the case.” Stop. This is exactly the situation we have reviewed in looking over the cited jurisprudence analyzing § 726(a)(5). To refresh— For claims existing prior to the filing of the bankruptcy petition, the date of filing accrual date is appropriate and mandated under the plain language of the statute ... for a claim to section 330(a) attorney’s fees arising subsequent to the filing, however, a literal application of the statute makes little sense. The Ninth Circuit points out that for a claim to § 330(a) attorney’s fees arising subsequent to fifing, a literal application of the statute makes little sense; interest cannot accrue on fees for services which have not yet been performed. A literal interpretation of § 726(a)(5) provides unexpected results as to interest allowable to attorneys and trustees, whose administrative expenses arise subsequent to filing. The conflict inherent in a literal reading of § 726(a)(5) is thoroughly explored in the case law around the country ... allowing interest to accrue prior to actual awards is contrary to the remainder of the statutory scheme as well as to the case law interpreting it. The phraseology, “makes little sense,” “unexpected results,” etc. is only metaphor for the conclusion by a court that it has a better way of handling things. Against the backdrop of the foregoing," }, { "docid": "12843951", "title": "", "text": "Riverside—Linden case, the attorney for trustee requested interest from the date that the fees and costs were invoiced. The Court of Appeals notes that § 503(b), the provision which defines attorney’s fees as a compensable administrative expense, refers to “compensation and reimbursement awarded under section 330.” 945 F.2d at 324 (citing 11 U.S.C. § 503(b)(2)) (emphasis in original). While finding that § 726(a)(5) might permit interest on certain administrative expenses such as the fees of the attorney for trustee in that case, the Court of Appeals agrees with the Bankruptcy Court and the Bankruptcy Appellate Panel that “since the attorney’s fees and costs are not entitled to be treated as an administrative expense until the date the court awards the fees and costs, interest ... cannot begin to accrue until the date the court awards the fees and costs.” Id. at 324; In re Riverside—Linden Inv. Co. II, 111 B.R. 298 (9th Cir. BAP 1990), aff'g 89 B.R. 848 (Bankr.S.D.Cal.1988). The court concludes that it is not until the fees have been awarded by the Bankruptcy Court pursuant to § 330 that they become an administrative expense entitled to treatment as a claim under § 726(a)(5). The Court of Appeals affirmed the Bankruptcy Court’s and the BAP’s denial of interest on invoiced fees of the attorney for trustee. It is also to be noted that § 326 provides that the trustee’s fees are payable after the services are rendered. In this instance the trustee’s duties have not been concluded. Although the case at bar concerns interest on the fees of the trustee, not interest on the fees of the attorney for trustee, the Ninth Circuit’s analysis leads to the same result. Ames claims interest on a priority administrative expense for compensation just like the attorney for trustee in In re Riverside—Linden. 11 U.S.C. §§ 726(a)(5), 507(b)(1), 503(b)(2), 330(a). Section 726(a)(5) provides for interest on claims specified in § 507, which lists as a priority claim administrative expenses allowed under § 503(b). 11 U.S.C. § 507(a)(1). Section 503(a) provides that “an entity may file a request for payment of an administrative" }, { "docid": "12843949", "title": "", "text": "hearing Ames moved to reduce his request for interest from $9,277.35 to $1,177.64, plus $10. The U.S. Trustee alleged that Ames calculated interest from the date of the filing of the petition and argued that there is no provision in the Bankruptcy Code that provides for interest on Ames’ compensation. The Court found that there was no provision in the Code for interest to be paid to Ames and denied Ames’ request for interest. Ames objected to the order entered October 20, 1992, limiting his compensation to the maximum amount provided in 11 U.S.C. § 326(a) and disallowing the payment of interest on the trustee’s commission. Ames filed a Notice of Appeal on October 29, 1992. CONCLUSIONS OF LAW Section 726(a)(5) provides for distribution of property of the estate “in payment of interest at the legal rate from the date of the filing of the petition on any claim paid under paragraph (1), (2), (3), or (4) of this subsection” prior to any refund to the debt- or. 11 U.S.C. § 726(a)(5). Section 726(a)(5) allows for payment of interest from the date of the filing of the petition, which is the alleged date from which Ames claims interest on his commission. However, the Ninth Circuit points out that for a claim to § 330(a) attorney’s fees arising subsequent to filing, a literal application of the statute makes little sense; “interest cannot accrue on fees for services which have not yet been performed.” Boldt v. Crake (In re Riverside—Linden Investment Co.), 945 F.2d 320, 323 (9th Cir.1991) (citing Riverside—Linden II, 111 B.R. 298, 303 (9th Cir. BAP 1990)). The Ninth Circuit also states that statutes “should never be construed as establishing statutory schemes that are illogical, unjust, or capricious.” Id. (citing Bechtel Construction v. United Board of Carpenters & Joiners, 812 F.2d 1220, 1225 (9th Cir.1987)). Ames’ reading of the Bankruptcy Code entitling him to interest on his fee establishes just such an illogical, unjust, and capricious statutory scheme. The Ninth Circuit addresses the issue of interest on fees in In re Riverside—Linden Investment Co., 945 F.2d 320, 323. In the" }, { "docid": "4149466", "title": "", "text": "then, according to the court, § 726(a)(5), which does not mean what it says, means that interest on these attorney’s fees accrues from the date the fees are awarded. The underlying assumption is that the attorney’s fees requested through separate application are covered by § 726(a)(5). The Motley court reiterates the Riverside-Linden analysis on the requirement of a fee award trigger-point for the applicability of § 726(a)(5), equating the trustee’s compensation requested through the final report with the fee award requested through separate application, because they are both, from the date of the award, entitled to administrative expense status. Motley and Riverside-Linden are cited with approval in In re Chiapetta, a case dealing with both a trustee compensation request and an attorney’s fee application, both submitted as part of the final report “package.” The Ghiapetta court, which we will find approached these matters backwards, was taken with the aforementioned opinions, adopting the analyses as its ground for first throwing out § 726(a)(5) and then rewriting it. Noting that § 330 claims do not arise until after the filing of a petition, when a court enters a fee award, the court concluded that, in the context of claims pursuant to § 330(a), literal application of allowance of interest for claims “from the date of filing” makes “little sense.” Id. at 323. The court further stated that statutes “should never be construed as establishing statutory schemes that are illogical, unjust or capricious.” Id. at 324. Therefore the court concluded that, in order to provide a logical application of § 726(a)(5) to § 330(a) claims, since “it is not until the fees have been awarded by the bankruptcy court pursuant to § 330 ... [that they are entitled] to treatment as a claim under § 726(a)(5)” “interest on such fees does not begin to accrue until the date the court makes the award.” .. . Again, the required trigger-point before § 726(a)(5) is applicable. This determination of statutory meaning is followed in In re Brown, though because the judge is Judge Paskay, there are no slavishly adhering quotations. The Brown court, however, which" }, { "docid": "4149470", "title": "", "text": "Regarding the necessity of a fee award under § 330 as a trigger-point for the accrual of interest upon (all) administrative compensation claims, the court merely mouths the Riverside-Linden “observation” that “a literal reading of § 726(a)(5) without reference to the remainder of the Code would be illogical,” and adopts the Ninth Circuit conclusion (made from its extensive trove of common sense) that “It is not until the fees have been awarded ... pursuant to section 330, therefore [(doesn’t this word presuppose preceding analysis?) ], that they become an administrative expense entitling them to treatment as a claim under § 726(a)(5).” These are the primary cases dealing with § 726(a)(5) interest, and they, to the one, are (they think) unable to make sense out of § 726(a)(5) unless it is rewritten to require that with respect to administrative compensation claims, interest does not begin to accrue until there is an award of compensation. The statute, then, as rewritten by the aforementioned courts, should read something like this: Fifth, in payment of interest at the legal rate from the date of the filing of the petition, on any claim paid under paragraph (1), except a claim paid under § 507(a)(1) and/or § 503(b), Of course, it doesn’t. Our generally put (for now) interpretation of § 726(a)(5), read in conjunction with the other provisions of the Code, and understood in proper context, is that it applies to all claims paid through the final distribution process outlined in § 726. Therefore, it is not applicable to claims paid outside the final distribution process, such as ordinary course of business administrative claims, fee application based compensation claims, etc. We elucidate our argument in more detail later, but think it necessary here to place our criticism of the aforementioned argument of the no-interest courts in frame. Our interpretation of § 726(a)(5) requires no judicial legislation, and provides us a perch from which to analyze the attempts at judicial rewrite that have failed. We here address the fallacies of the “no interest until order allowing compensation” statutory finagling. The underlying assumption is that § 726(a)(5) applies" }, { "docid": "226548", "title": "", "text": "any of these funds for his own use, he has no right to charge interest on the unpaid balance of his claim. Once the fees are awarded by the court they become an administrative expense under 11 U.S.C. § 503(b). The claim may only be paid after it becomes an administrative expense, and interest may only begin to accrue commencing on the date of the award. The Ninth Circuit has addressed this issue in a case where an attorney sought interest from the date the fees were invoiced. In re Riverside-Linden Inv. Co., 945 F.2d 320 (9th Cir.1991). Noting that interest may be charged on administrative claims, the court held that attorney fees do not become administrative expenses until the fees have been awarded by the bankruptcy court. The court based its decision on the language of 11 U.S.C. § 503(b): “After notice and a hearing, there shall be allowed administrative expenses, ... including ... compensation and reimbursement awarded under section 330(a) ....” (emphasis added). The Riverside court held “that interest on claims of attorney’s fee awarded under § 330(a) accrues from the date they are awarded.” Riverside, 945 F.2d at 324. This conclusion .was reached by all three courts which considered the issue—the bankruptcy court, the bankruptcy appellate panel, and the Ninth Circuit. The parties and the Court have discovered only three other cases in which courts have considered the issue of interest on unpaid attorney fees. Each of these cases allowed interest only after the fees were awarded by the bankruptcy court. In re Commercial Consortium of California 135 B.R. 120, 127 (Bankr.C.D.Cal.1991); In re D.W.G.K. Restaurants 106 B.R. 194, 197-98 (Bankr.S.D.Cal.1989); In re Energy Cooperative, Inc., 95 B.R. 961, 968 (Bankr.N.D.Ill.1988). The two cases cited for support by appellee in his brief both involve interest on unpaid taxes. However, tax claims are nondischargeable, they are liquidated, and they are not subject to court approval. Moreover, the main case cited by appellee as support for his position goes on to note that Congress intended for taxes to receive special treatment under the bankruptcy code. Priority tax claims remain" }, { "docid": "1108014", "title": "", "text": "Riverside-Linden, supra, the court addressed this dilemma. There, the attorney for a Chapter 7 trustee requested § 726(a)(5) interest from the date that the fees and costs were invoiced, id. at 322, which we note is a more modest request than that of the instant Trustee on behalf of herself and her special counsel, who proposes to have interest accrued from the date of the professionals’ respective appointments. Nevertheless, noting that § 330 claims do not arise until after the filing of the petition, when a court enters a fee award, the court concluded that, in the context of claims pursuant to § 330(a), literal application of allowance of interest for claims “from the date of filing” makes “little sense.” Id. at 323. The court further stated that statutes “should never be construed as establishing statutory schemes that are illogical, unjust or capricious.” Id. at 324. Therefore, the court concluded that, in order to provide a logical application of § 726(a)(5) to § 330(a) claims, since “[i]t is not until the fees have been awarded by the bankruptcy court pursuant to § 330 ... [that they are entitled] to treatment as a claim under § 726(a)(5),” interest on such fees does not begin to accrue until the date the court makes the award. Id. Accord, In re Motley, 150 B.R. 16, 19 (Bankr.E.D.Va.1992); In re Commercial Consortium of California, 135 B.R. 120, 127 (Bankr.C.D.Cal.1991) and In re Energy Cooperative, Inc., 95 B.R. 961, 966-68 (Bankr.N.D.I11.1988). The court finds that the approach and the reasoning adopted by the aforesaid courts is applicable to the instant matter. This court has not, until the within Order, approved fees to either the Trustee or Gross. Consequently, the “award of a claim” necessary to trigger the application of § 726(a)(5) to these claims will not accrue until the Distribution Order itself is calculated. Therefore, as both the Debtor and the UST contend, the Trustee and Gross are not entitled to interest on their fee awards. See also Motley, supra, 150 B.R. at 20 (interest cannot be paid to a trustee because doing so would cause" }, { "docid": "12843954", "title": "", "text": "20, 1992. Other courts have followed this reasoning in determining when interest on § 330(a) fees begins to accrue. See e.g. In re Commercial Consortium of California, 135 B.R. 120, 127 (Bankr.C.D.Cal.1991); In re Energy Cooperative, Inc., 95 B.R. 961, 966-68 (Bankr.N.D.Ill.1988). Ames contends without citing any authority that “interest by definition awarded by statute is not compensation” (Ames’ Response at ¶ 8), but he fails to consider from what point in time such interest would be calculated. Even in the case Ames cites as authority for allowing interest on his fee, the court awarded interest to be paid on a previously court-ordered refund to the debtors. See Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 883 (11th Cir.1990). Under the Riverside — Linden and the Grant cases, Ames’ claim for fees could not accrue interest from the date of the filing of the petition as the TFR calculates, nor from the date Ames asked the U.S. Trustee for an interim distribution. Since Ames’ administrative expense claim did not arise until October 20, 1992, were Ames entitled to interest at all under the Code, which this Court seriously doubts, such interest could only accrue from the date the Court entered the order approving the trustee’s fees and costs. While the Ninth Circuit found that § 726(a)(5) in theory would pay interest on allowed attorney’s fees, the court denied the interest requested. This Court notes that under the Ninth Circuit case, § 726(a)(5) would pay interest only on fee awards the payment of which for some reason was delayed. Under the usual procedure, § 330(a) compensation is paid soon after the award, in which case no interest would accrue. Unlike the attorney for trustee in Riverside — Linden, whose compensation the Code does not fix by statute, Ames’ request for fees must fall within the limits of § 326(a) which dictates the trustee’s compensation. The limits that § 326(a) places on trustee commission distinguishes Ames’ case from other cases in which courts have considered interest on claims. Case law interpreting § 326(a) strictly construes the restrictions on maximum" }, { "docid": "1588251", "title": "", "text": "filing fee provided for in Section 330(b)(1) and the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, § 117. The Trustee’s services in the second administration were limited to a Motion to Approve a Compromise for $12,000 which was negotiated prior to the reopening of the ease. The Motion was objected to and denied. A Second Motion to Compromise ultimately brought $30,000 into the estate. Now the Trustee is seeking to earn interest for the forty-one months that have passed from the date of his appointment, though the case was closed for fifteen of those months. Apart from this Court’s disinclination to allow the maximum compensation to the Trustee for services rendered in this ease, the fact remains that an order has yet to be entered to allow the Trustee any compensation. Thus, he has no claim as defined by § 101(5)(A) of the Bankruptcy Code. Common sense dictates that one can not earn interest when no principal exists. Upon the Trustee’s appointment, he had no cognizable right to payment, other than his entitlement to a statutory allowance of $60. It is conceivable that the Trustee could receive no allowance of fees, as his compensation is to be based solely on the amount he distributes to parties in interest. For this reason, the Trustee is not entitled to interest on his fees computed from the date of his appointment. The request for interest by the Special Counsel, Haskins, is different as once a professional files a fee application, there is evidence of work performed. However, attorneys’ fees are not entitled to be treated as a compensable administrative expense pursuant to § 503(b)(2), until compensation is “awarded under section 330(a).” 11 U.S.C. § 503(b)(2). (emphasis supplied). It follows that interest paid under § 726(a)(5) on claims of attorneys’ fees awarded under § 330(a), can accrue only from the date the court awards the fees. In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir.1991). Thus, Haskins’ request of interest from the date of his fee application is not appropriate. He may receive interest from April 4, 1995, the date that" }, { "docid": "4149469", "title": "", "text": "yet to be entered to allow the Trustee any compensation. Thus, he has no claim as defined by § 101(5)(A) of the Bankruptcy Code. Common sense dictates that one can not earn interest when no principal exists. Upon the Trustee’s appointment, he had no cognizable right to payment, other than his entitlement to a statutory allowance of $60. It is conceivable that the Trustee could receive no allowance of fees, as his compensation is to be based solely on the amount he distributes to parties in interest. For this reason, the Trustee is not entitled to interest on his fees computed from the date of his appointment. Riverside-Linden is cited as authority for the proposition that interest under § 726(a)(5) does not begin to accrue upon the attorney’s fee award until after the order upon the application. The Eleventh Circuit, in U.S. Trustee v. Fishback (In re Glados), dealt with compensation requests from both the trustee (through the final report) and the trustee’s lawyer (through application), and agrees, in all respects with the preceding authority. Regarding the necessity of a fee award under § 330 as a trigger-point for the accrual of interest upon (all) administrative compensation claims, the court merely mouths the Riverside-Linden “observation” that “a literal reading of § 726(a)(5) without reference to the remainder of the Code would be illogical,” and adopts the Ninth Circuit conclusion (made from its extensive trove of common sense) that “It is not until the fees have been awarded ... pursuant to section 330, therefore [(doesn’t this word presuppose preceding analysis?) ], that they become an administrative expense entitling them to treatment as a claim under § 726(a)(5).” These are the primary cases dealing with § 726(a)(5) interest, and they, to the one, are (they think) unable to make sense out of § 726(a)(5) unless it is rewritten to require that with respect to administrative compensation claims, interest does not begin to accrue until there is an award of compensation. The statute, then, as rewritten by the aforementioned courts, should read something like this: Fifth, in payment of interest at the legal" }, { "docid": "6791737", "title": "", "text": "the final fee application. The Bankruptcy Court sustained Crake’s objections and denied fees incurred to investigate the Hafer claim, opposing Crake’s motion to dismiss, and the tax return investigations. See In re Riverside-Linden Inv. Co., 85 B.R. 107 (Bankr.S.D.Cal.1988). The BAP affirmed the Bankruptcy Court’s decision, see In re Riverside-Linden Inv. Co., 99 B.R. 439 (9th Cir. BAP 1989), and we affirmed in In re Riverside-Linden Inv. Co., 925 F.2d 320 (9th Cir.1991) (per curiam) (“Riverside-Linden /”). On May 26, 1988, E & H filed a supplemental fee application. The supplemental application sought $3418 in fees incurred opposing Crake’s objection to the final fee application. The supplemental application also sought, for the first time, $6266.32 in interest on fees and costs from May 21, 1985, the date following the date the estate was invoiced, through June 15, 1988, plus $9.97 per day thereafter, and fees incurred in researching whether E & H was entitled to such interest and calculating the amount of the requested interest. Crake objected to the supplemental application and the Bankruptcy Court sustained most of Crake’s objections and disallowed fees incurred in opposing Crake’s objection to the final fee application, for interest on fees prior to the date they were awarded, and fees incurred in determining whether it was entitled to interest and the calculations of such interest. See In re Riverside-Linden Inv. Co., 89 B.R. 848, 849-50 (Bankr.S.D.Cal.1988). Although the BAP disagreed in part with the reasoning of the Bankruptcy Court, it affirmed in In re Riverside-Linden Inv. Co., Ill B.R. 298 (9th Cir. BAP 1990) (“Riverside-Linden IT’). E & H filed this appeal. II. We consider whether the Bankruptcy Court erred in disallowing fees incurred opposing unsuccessfully Crake’s objection to E & H’s final fee application and determining that interest on attorney’s fees payable from the estate under 11 U.S.C. § 726(a)(5) accrues on the date the fees are awarded. We will not disturb a bankruptcy court’s award of attorney’s fees absent a finding that the court abused its discretion or erroneously applied the law. Riverside-Linden I, 925 F.2d at 322; In re Nucorp Energy," }, { "docid": "10192486", "title": "", "text": "days after an order for relief in a case under this title, or more often if the court permits_” 11 U.S.C.S. § 331 (Callaghan 1992). Generally, after notice and hearing on a fee application, the court promptly enters an order concerning allowance of the fees and expenses. The court recognizes that owing to the objection to San-dler’s application, the complicated issues raised in the application and objection, and the parties’ request to brief the relevant issues, it is considering the allowance of Sandler’s fees and expenses many months after the filing of his application. Courts have held that the payment of interest on uncollected fees is appropriate. Boldt v. Crake (In re Riverside-Linden Investment Co.), 945 F.2d 320, 323-24 (9th Cir.1991); In re Motley, 150 B.R. 16, 18-19 (Bankr.E.D.Va.1992) (dealing with trustee’s fees, but noting that the analysis of fees for a trustee’s attorney leads to the same result); In re Energy Cooperative, Inc., 95 B.R. 961, 966 (Bankr.N.D.Ill.1988); and In re Commercial Consortium of California, 135 B.R. 120, 127 (Bankr.C.D.Cal.1991). These courts have concluded that interest on unpaid professional fees and expenses awarded under 11 U.S.C. § 330(a) accrues from the date the court awards the fees. Id. As the Ninth Circuit noted, § 726(a)(5) specifically authorizes the payment of interest on claims of the kind specified in § 507, including administrative expenses allowed under § 503(b). 945 F.2d at 324. Inasmuch as Section 503(b) refers to “compensation and reimbursement awarded under section 330(a),” the Ninth Circuit concluded in Boldt that “[i]t is not until the fees have been awarded by the bankruptcy court pursuant to Section 330, therefore, that they become an administrative expense entitling them to treatment as a claim under Section 726(a)(5).” Id. at 324. Similarly, in its supplemental opinion dated January 24,1989, the Bankruptcy Court for the Northern District of Illinois concluded that interest awarded as enhancement for delay in payment begins to run from the date the court awards the fees, rather than the date the services are provided. Energy Cooperative, 95 B.R. at 968. The court agrees with the rationale of these cases." }, { "docid": "226547", "title": "", "text": "that attorneys customarily charge interest on outstanding fees in cases outside of the bankruptcy arena, and therefore bankruptcy attorneys should be entitled to a recovery for interest on their fees. Discussion An attorney hired by the debtors must give notice to the creditors and receive court approval prior to receiving compensation from the bankruptcy estate. 11 U.S.C. § 330. Absent such prior approval, subsequent fee applications should be denied and any funds received should be ordered returned to the estate. Lavender v. Wood Law Firm, 785 F.2d 247, 248 (8th Cir.1986). That rule has been expanded in this bankruptcy district to include pre-petition retainers paid by debtors to counsel. In re Tri-County Water Ass’n, Inc., 91 B.R. 547 (Bankr.D.S.D.1988). The court there held that such funds may only be removed from the retainer account after proper notice and court approval. The United States Trustee argues that until attorney fee requests are properly noticed and approved by the court pursuant to § 330, they are an unliquidated claim. Since the attorney has no right to take any of these funds for his own use, he has no right to charge interest on the unpaid balance of his claim. Once the fees are awarded by the court they become an administrative expense under 11 U.S.C. § 503(b). The claim may only be paid after it becomes an administrative expense, and interest may only begin to accrue commencing on the date of the award. The Ninth Circuit has addressed this issue in a case where an attorney sought interest from the date the fees were invoiced. In re Riverside-Linden Inv. Co., 945 F.2d 320 (9th Cir.1991). Noting that interest may be charged on administrative claims, the court held that attorney fees do not become administrative expenses until the fees have been awarded by the bankruptcy court. The court based its decision on the language of 11 U.S.C. § 503(b): “After notice and a hearing, there shall be allowed administrative expenses, ... including ... compensation and reimbursement awarded under section 330(a) ....” (emphasis added). The Riverside court held “that interest on claims of attorney’s" }, { "docid": "18510266", "title": "", "text": "of fees. Accord: In re Fall, 93 B.R. 1003, 1010 (Bankr.D.Ore.1988) (allowing fee enhancement in the form of retroactive adjustment to current rates for long-unpaid chapter 7 trustee’s counsel who eventually recovered substantial assets for estate); In re D.C. Sullivan & Co., Inc., 69 B.R. 212 (Bankr.D.Mass.1986) (awarding current rather than historical hourly rates in approving final fee application of counsel for chapter 7 trustee). B. Availability of Interest on Fees as Compensation for Delay Another possible method for compensating professionals for the delay in payment of fees is by allowing interest. This method is, however, available in chapter 7 cases only as a means of compensating counsel for the delay in payment after the fee has been allowed, because Section 726(a)(5) limits interest to allowed claims, whether priority or otherwise. Section 726 provides in pertinent part: “Distribution of property of the estate “(a) Except as provided in section 510 of this title, property of the estate shall be distributed— “(1) first, in payment of claims of the kind specified in, and in the order specified in, section 507 of this title; “(5) fifth, in payment of interest at the legal rate from the date of the filing of the petition, on any claim paid under paragraph (1), (2), (3), or (4) of this subsection; ...” As administrative expenses under Section 503(b), professional fees that have been allowed after notice and hearing are entitled to first priority under Section 507(a)(1). As the Ninth Circuit recently held in In re Riverside-Linden Investment Co., supra, 945 F.2d at 324: “It is not until the fees have been awarded by the bankruptcy court pursuant to Section 330, therefore, that they become an administrative expense entitling them to treatment as a claim under Section 726(a)(5).... [We] hold that interest on claims of attorney’s fees awarded under section 330(a) accrues from the date they are awarded.” This approach is consistent with the general principle that statutory or judgment interest only begins to accrue when the claim is fixed in amount, and no longer uncertain. See, e.g., Cal.Civ.Code Section 3287 (allowing pre-judgment interest from date that" }, { "docid": "4149463", "title": "", "text": "the court threatens the parties with even more far-fetched judicial rewriting or undoing of statutes (in the name of statutory analysis) to establish the power of the court, in the event the judicial preference is challenged. Again, not a pretty trail. We move from Motley’s self-congratulatory coup de grace to the other arguments, consistently employed by the other courts addressing the question, offered against application of § 726(a)(5), as written, to professional compensation claims. Argument 1 above: (1) Section 726(a)(5) must be appropriately “triggered.” With respect to professional compensation, the claim does not arise until an order awarding the claim and therefore, the interest provision of § 726(a)(5) is not triggered until the compensation order. We have mentioned that we were concerned by the anomalous prospect underlying argument number 1. However, given the clear language of § 726(a)(5), and the illogic of Argument 1 it must fall. The Motley court looks back to the fount of these arguments, Boldt v. Crake (In re Riverside-Linden Investment Co.), for it authority. The Riverside-Linden court dealt with a request for interest upon a claim for attorney’s fees by the attorney for the trustee. The interest requested was accrued, not from the petition date, but from the date the estate was first invoiced, because, we suppose, the firm “concedes that a date of filing accrual date for post-petition awards of attorney’s fees would not have been intended by Congress.” According to the court, § 726(a)(5), by its words, states that interest accrues from the petition date, and that “for claims existing prior to the filing of the bankruptcy petition, date of filing is appropriate and mandated by the statute.” However, says the court, “for a claim to section 830(a) attorney’s fees arising subsequent to filing, however, a literal application of the statute makes little sense; interest cannot accrue on fees for services which have not yet been performed.” The court goes on to cite Supreme Court authority for departing from statutory language when “reliance on that language would defeat the plan purpose of the statute,” or when construing the statute in conformity with the" } ]

[ { "docid": "19034463", "title": "", "text": "and test results is still relevant even if an ALJ may not base a decision solely on the lack of objective corroboration of complaints of pain. See 20 C.F.R. § 404.1529(c); Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir.2006). The ALJ found that Pierce had been “fairly consistent in terms of her complaints regarding her symptoms and their limiting effects,” but the ALJ ultimately discounted her credibility. The ALJ’s credibility finding included a familiar statement: “the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity.” When there is no further explanation, we have often criticized such language as “meaningless boilerplate.” See Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013); Bjornson, 671 F.3d at 644-45; Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). Without further explanation, the boilerplate fails to specify which statements are not credible. Martinez v. Astrue, 630 F.3d 693, 695 (7th Cir.2011). In this case, though, the ALJ followed the boilerplate conclusion with a detailed explanation of the evidence and his reasoning about credibility, so the boilerplate phrases are not the problem. The problem is that the explanation shows that the ALJ’s credibility finding misstated some important evidence and misunderstood the import of other evidence. First, the ALJ inappropriately rested his credibility determination too heavily on the absence of objective support for Pierce’s complaints without digging more deeply. See SSR 96-7p(4); Bjornson, 671 F.3d at 646; Myles, 582 F.3d at 676-77; Carradine, 360 F.3d at 753. That was particularly erroneous because the ALJ knew that her lack of insurance prevented her from seeking medical attention and thus could explain her lack of objectively quantifiable test results. (AR 48-49, 63). In its brief to this court, the government took this argument a step further, pointing to Pierce’s limited treatment history itself as proof that her condition was not serious. Not only is the government’s argument an impermissible post hoc rationale, see SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943);" } ]

[ { "docid": "15054726", "title": "", "text": "562; Moss v. Astrue, 555 F.3d 556, 561 (7th Cir.2009). Rather, the ALJ must consider all of the evidence, including the claimant’s daily activities; the location, duration, frequency and inten sity of the claimant’s pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side effects of any medication the claimant takes to alleviate pain or other symptoms; treatment, other than medication, for relief of pain or other symptoms; any measures the claimant uses to relieve pain or other symptoms; and any other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. The ALJ must, under SSR 96-7p, provide specific reasons for a credibility determination, grounded in the evidence and articulated in the decision. See Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.2003). Such reasons may not be implied or supplied later by the Commissioner’s lawyers. Golembiewski, 322 F.3d at 916. The court generally reviews an ALJ’s credibility determination deferentially, reversing only if it is patently wrong. Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.2008) (citing Prochaska v. Barn-hart, 454 F.3d 731, 738 (7th Cir.2006)). However, the court may reverse when the ALJ fails to comply with SSR 96-7p, including the Ruling’s explanation requirement. See, e.g., Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir.2003). 2. Analysis In the 2008 decision, the ALJ found that plaintiffs impairments could produce the alleged symptoms, but that plaintiffs statements about the intensity, persistence and limiting effects of the symptoms were not supported by the evidence. In support of that finding, the ALJ noted that plaintiff appeared strong and muscular, and did not display pain behaviors or discomfort at the hearing; that plaintiffs daily activities were not as limited one would expect given the complaints of pain; and that plaintiff did not follow-up on recommendations made by Dr. Jasek, which suggested that plaintiffs fibromyalgia was not as severe as alleged. The ALJ concluded: “Although the inconsistencies outlined here may not be the result of a conscious intention to mislead on the claimant’s part, these inconsistencies draw in to" }, { "docid": "22139489", "title": "", "text": "In order to determine whether the ALJ’s decision is supported by substantial evidence, we must first determine what rule of law the ALJ should have applied in evaluating her claim. The parties have disputed what the standard should be in evaluating claims of pain. Our cases since Veal have read the regulations, which were somewhat ambiguous, to require a rather restrictive approach toward the evaluation of subjective complaints of pain. Although the Veal rule did not do so, cases such as Moothart v. Bowen, 934 F.2d 114, 116 (7th Cir.1991), and Walker v. Bowen, 834 F.2d 635, 641 (7th Cir.1987), have limited the use of pain in making a disability determination to only those complaints the intensity and persistence of which are supported by objective medical evidence. The Secretary, however, has recently promulgated regulations clarifying when pain should be considered. 56 Fed.Reg. 57,928 (1991) (codified at 20 C.F.R. §§ 404.1529 and 416.929 (1992)). The regulations provide for a two-step process in evaluating whether subjective complaints of pain contribute to a finding of disability: (I) For pain or other symptoms to contribute to a finding of disability, an individual must first establish, by medical signs and laboratory findings, the presence of a medically determinable physical or mental impairment which could reasonably be expected to produce the pain or other symptoms alleged; and (2) once such an impairment is established, allegations about the intensity and persistence of pain or other symptoms must be considered in addition to the medical signs and laboratory findings in evaluating the impairment and the extent to which it may affect the individual’s capacity for work. Id. As the regulations and commentary make clear, the Secretary does not “require objective medical evidence to corroborate statements about the intensity, persistence, and functional effects of pain or other symptoms .... [and] will not reject the statements of the individual ... solely because the available objective medical evidence does not substantiate these statements.” Id. at 57,932. Under our rulings in Moothart and Walker, the objective medical evidence must support not only the existence but also the degree and persistence of the" }, { "docid": "1066043", "title": "", "text": "two medically determinable severe impairments, anxiety and depression, is supported by substantial evidence. E. Magistrate Judge did not Err in Concluding that the ALJ Properly Used Lozada’s Daily Activities as an Indicator of Lozada’s Credibility In assessing the severity of Plaintiffs mental impairments, the ALJ concluded that Plaintiffs allegations concerning the intensity, duration and limiting effects of her symptoms were not entirely credible, in part, because they were incompatible with Plaintiffs statement that she is able to care for her two young children and her younger brother. R. at 14, 261. In determining the credibility of an individual’s subjective complaints of pain and other symptoms, the ALJ must consider “the entire case record, including the objective medical evidence, the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record.” SSR 96-7p, 1996 WL 374186, at *1 (S.S.A. Jul. 2, 1996). In the course of this inquiry, however, “[the] ALJ must give serious consideration to a claimant’s subjective complaints ..., even where those complaints are not supported by objective evidence.” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir.1993) (citing Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985)); see also SSR 96-7p, 1996 WL 374186, at *1 (“An individual’s statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his ... ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.”). The ALJ concluded that the objective medical evidence established that Plaintiffs medically determinable impairments — depression and\" anxiety — could reasonably be expected to produce her symptoms (i.e. constant anxiety and depression, inability to focus on task or follow directions, fear of being around people, difficulty sleeping, and paranoia). R. at 13. However, in evaluating the credibility of Plaintiffs subjective complaints regarding the severity of those impairments, the ALJ relied in part on evidence of the extent of Plaintiffs daily activities of caring for her" }, { "docid": "17483639", "title": "", "text": "Barnhart, No. 04-CV-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006). “In assessing a plaintiffs subjective claims of pain and other symptoms, the ALJ must first determine that there are ‘medical signs and laboratory findings which show that [the claimant has] a medical impairment which could reasonably be expected to produce the pain.’” Vargas v. Astrue, No. 10-CV-6306 (PKC), 2011 WL 2946371, at *11 (S.D.N.Y. July 20, 2011) (quoting Snell, 177 F.3d at 135 and 20 C.F.R. § 404.1529(a)). So long as the “findings are supported by substantial evidence, the court must uphold the ALJ’s. decision.to discount a claimant’s subjective complaints of pain.” Vargas, 2011 WL 2946371, at *11 (quoting Aponte v. Sec’y of Health and Human Servs. of the U.S., 728 F.2d 588, 591 (2d Cir. 1984)). However, these findings must “be set forth with sufficient specificity to permit intelligible plenary review of .the record.” Pena, 2008 WL 5111317, at *10 (internal quotation marks omitted) (quoting Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988)). Because subjective statements about symptoms alone may not establish a disability, the ALJ follows a two-step analysis for evaluating assertions of pain and other limitations. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). First, the ALJ must weigh whether “the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Id. (citing 20 C.F.R. § 404.1529(b)). If the answer at the first step of the analysis is yes, the ALJ proceeds to the second step and considers “the extent to which [the claimant’s] symp toms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (citing 20 C.F.R. § 404.1529(a)) (internal quotation marks omitted). Because “an individual’s symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone,” the ALJ may take into account a variety of other considerations as evidence. Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA" }, { "docid": "9134160", "title": "", "text": "§ 404.1529(c)(1) ). \"Second, the ALJ must evaluate the intensity and persistence of those symptoms considering all of the available evidence; and, to the extent that the claimant's [subjective] contentions are not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry.\" Id. Here, the ALJ engaged in the two-step inquiry. (See Dkt. 8 at 22 (explaining two-step inquiry) ). Specifically, the ALJ discussed Plaintiff's testimony regarding his impairments and concluded that, while Plaintiff's medically determinable impairments could reasonably be expected to produce some of the above alleged symptoms, \"[Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.\" (Id. at 22-23). The ALJ concluded that \"[a]ccordingly, these statements have been found to affect [Plaintiff's] ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.\" (Id. at 23). In the written determination, the ALJ cited to specific, objective and non-objective evidence in the record contradicting Plaintiff's claim that he is unable to work, including that Plaintiff largely responded well to mental health treatment, had mostly normal mental status examinations, and was able to engage in some work on a part-time basis. (Id. at 23-24). The ALJ also noted that Plaintiff's testimony that he experienced side effects from medications was contradicted by the record, which revealed that Plaintiff consistently denied experiencing side effects from his medication. (Id. at 24; see, e.g., id. at 421 (in September 2013, Plaintiff reported that \"the medication is helping,\" and \"denie[d] any side effects to the Depakote.\"); id. at 506 (in March 2016, Plaintiff reported that \"his appetite is good and he denies any side effects with his medications.\") ). The ALJ's consideration of this evidence was proper. See Robinson v. Comm'r of Soc. Sec. , No. 1:16-CV-00648 (MAT), 2018 WL 3583236, at *5, 2018 U.S. Dist. LEXIS 125613, at *16-17 (W.D.N.Y. July 26, 2018) (\"the ALJ appropriately relied on inconsistent statements by Plaintiff to determine that he" }, { "docid": "12559912", "title": "", "text": "has not demonstrated full and fair development of the record, the matter must be remanded for re-hearing. B. Credibility Plaintiff next argues that the ALJ erred in finding her and her mother’s testimony “not entirely credible.” (TV. at 16.) While the reviewing court may not second guess the ALJ’s assessment of the witnesses, the ALJ must sufficiently articulate the reasons for his credibility determination in order to permit meaningful judicial review. Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.2003) (citing SSR 96-7p). Those reasons must be specified in the ALJ’s decision; they may not be implied or supplied later by the Commissioner’s lawyers. Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003). Further, the ALJ must comply with 'the requirements of SSR 96-7p in evaluating credibility. Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir.2003). SSR 96-7p establishes a two-step process for evaluating the claimant’s testimony and statements about symptoms such as pain, fatigue or weakness. First, the ALJ must consider whether the claimant suffers from a medically determinable physical or mental impairment that could reasonably be expected to produce the claimant’s symptoms. If not, the symptoms cannot be found to affect the claimant’s ability to work. SSR 96-7p. Second, if an underlying impairment that could reasonably be expected to produce the claimant’s symptoms has been shown, the ALJ must determine the extent to which the claimed symptoms limit her ability to work. In making this determination, the ALJ must consider the medical evidence along with the claimant’s daily activities; the location, duration, frequency and intensity of the pain; precipitating and aggravating factors; the type, dosage, effectiveness and side effects of any medication the claimant uses; treatment other than medication; any measures the claimant has used to relieve the pain or other symptoms; and functional limitations and restrictions. 20 C.F.R. § 404.1529(e)(3); SSR 96-7p. While the ALJ need not elaborate on each of these factors when making a credibility determination, he must sufficiently articulate his assessment of the evidence to assure the court that he considered the important evidence and to enable the court to trace the path of" }, { "docid": "22575122", "title": "", "text": "Functioning Capacity — Steps and 5 Having failed at step three, Scheck must show that he has insufficient residual functioning capacity to perform his past work. Stevenson, 105 F.3d at 1154. In making such a determination, the ALJ must consider whether there is an underlying “determinable physical or mental impairment that could reasonably be expected to produce the symptoms.” SSR 96-7p. Once this has been established, the ALJ must further evaluate the “intensity, persistence, and functionally limiting effects of the symptoms” in order to find whether those symptoms “affect the individual’s ability to do basic work activities.” Id. As the ALJ noted, “[ijnherent in such analysis, of course, is an assessment of the Claimant’s credibility.” (Br. of Plaintiff-Appellant at A-7.) The credibility of the claimant is then considered in light of “the entire case record, including the objective medical evidence, the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record.” SSR 96-7p. This finding on credibility must be supported in the ALJ’s decision to a point where a reviewing court can discern the weight assigned to the individual’s statements and reasons for that weight. Id. In this case, the ALJ found that Scheck’s medically determinable impairments could reasonably be expected to produce the type of symptoms discussed during the course of his testimony. Thus, she moved on and assessed the credibility of Scheck’s testimony by looking at the objective medical evidence, the claimant’s testimony, and a letter from Scheck’s surgeon. She first addressed the objective medical evidence and noted that “there is a dearth of documentary medical evidence concerning Mr. Scheck’s symptoms and treatment from June 2, 1989, his alleged onset date, to December 31, 1994, his date last insured, and in particular from June 2, 1989 to April 14, 1993, the date of his second surgery.” (Br. of Plaintiff-Appellant at A-10.) It is axiomatic that the claimant bears the burden of supplying adequate records and evidence to prove their claim" }, { "docid": "17202285", "title": "", "text": "rest of the evidence, including your medical history, the medical signs and laboratory findings, and statements by your treating or examining physician or psychologist or other persons about how your symptoms affect you.” Id. And a claimant’s allegations of pain will be “determined to dimmish [her] capacity for basic work activities” only insofar as her “alleged functional limitations and restrictions due to ... pain ... can reasonably be accepted as consistent with the objective medical evidence and other evidence.” Id. Social Security Ruling 96-7p supplies further guidance to the ALJ on how to evaluate pain. Once an underlying impairment that could reasonably be expected to generate the alleged pain has been established, the intensity, persistence and limiting effects of the pain must be evaluated “to determine the extent to which the symptoms affect the individual’s ability to do basic work activities.” SSR 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of An Individual’s Statements, 1996 WL 374186, at *1 (SSA July 2, 1996). This determination in turn requires “the adjudicator to make a finding about the credibility of the individual’s statements about the symptom(s) and its functional effects.” Id. In determining the individual’s credibility, the ALJ “must consider the entire case record” and may not disregard the individual’s statements about the intensity and persistence of her pain “solely because they are not substantiated by objective medical evidence.” Id. The ALJ’s decision “must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and reasons for that weight.” Id. at *2. Applying step one (and perhaps step two) of the analysis, the ALJ concluded that “there is no evidence of any underlying conditions which could be producing pain of the intensity which [Butler] has alleged.” JA 33. • His conclusion that “no evidence” supports her allegations once again reflects his failure to properly evaluate Lightfoote’s opinions. Moreover, Lightfoote is not alone in concluding that Butler suffers from lumbar" }, { "docid": "11636946", "title": "", "text": "evidence in the record, thé claimant’s demeanor, and other indicia of credibility, but must set forth his or her reasons with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.” Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999) (internal citations omitted). To this end, the ALJ must follow a two-step process to evaluate the plaintiffs contention of pain, set forth in SSR 96-7p: First, the adjudicator must consider whether there is an underlying medically determinable physical or medical impairment (s) ... that could reasonably be expected to produce the individual’s pain or other symptoms.... Second, ... the, adjudicator must evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to determine the extent to which the symptoms limit the individual’s ability to do basic work activities.... According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if the plaintiffs pain contentions are not supported by objective medical evidence, the ALJ must consider the following factors in order to make a determination regarding the plaintiffs credibility: 1. [Plaintiffs] daily activities; 2. The location, duration, frequency and intensity of [Plaintiffs] pain or other symptoms; 3. Precipitating and aggravating factors; 4. The type, dosage, effectiveness, and side effects of any medication [Plaintiff] take[s] or ha[s] taken to alleviate ... pain or other symptoms; 5. Treatment, other than medication [Plaintiff] receive[s] or ha[s] received for relief of ... pain or other symptoms; 6. Any measure [Plaintiff] use[s] or ha[s] used to relieve ... pain or other symptoms; 7. Other factors concerning [Plaintiffs] functional limitations and restrictions due to pain or other symptoms. If the ALJ finds that the plaintiffs pain contentions are not credible, he or she must state his reasons “explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s disbelief.” Young v. Astrue, No. 7:05-CV-1027, 2008 WL 4518992, at *11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y.1987)). In the present case, the ALJ concluded that Plaintiffs medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiffs statements" }, { "docid": "4962407", "title": "", "text": "factors set forth in SSR 96-7p. (Dkt. No. 10, p. 24). The Commissioner contends that the ALJ reasonably concluded that plaintiffs subjective symptoms were not entirely credible. Defendant argues that the ALJ properly found that plaintiffs claimed psychiatric symptoms were refuted by her treatment records and inconsistent with her activities and lifestyle. (Dkt. No. 11, p. 21-22). The ALJ retains discretion to assess the credibility of a claimant’s testimony regarding disabling pain and “to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.” Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979); Snell, 177 F.3d at 135 (holding that an ALJ is in a better position to decide credibility). If plaintiffs testimony concerning the intensity, persistence or functional limitations associated with his impairments is not fully supported by clinical evidence, the ALJ must consider additional factors in order to assess that testimony, including: 1) daily activities; 2) location, duration, frequency and intensity of any symptoms; 3) precipitating and aggravating factors; 4) type, dosage, effectiveness and side effects of any medications taken; 5) other treatment received; and 6) other measures taken to relieve symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi). The issue is not whether the clinical and objective findings are consistent with an inability to perform all substantial activity, but whether plaintiffs statements about the intensity, persistence, or functionally limiting effects of his symptoms are consistent with the objective medical and other evidence. See SSR 96-7p, 1996 WL 374186, at *2 (SSA 1996). One strong indication of credibility of an individual’s statements is their consistency, both internally and with other information in the case record. SSR 96-7p, 1996 WL 274186, at *5 (SSA 1996). After considering plaintiffs subjective testimony, the objective medical evidence, and any other factors deemed relevant, the ALJ may accept or reject claimant’s subjective testimony. Martone v. Apfel, 70 F.Supp.2d 145, 151 (N.D.N.Y. 1999); see also 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). An ALJ rejecting subjective testimony must do so explicitly and with specificity to enable the Court to decide whether there are legitimate" }, { "docid": "19656836", "title": "", "text": "Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.2003). A mere recitation of the testimony followed by a conclusory statement that the claimant’s allegations have been considered, or are (or are not) credible will not do. Giles, 483 F.3d at 488-89. Finally, the ALJ must comply with the requirements of SSR 96-7p in evaluating credibility. Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir.2003). SR 96-7p establishes a two-step process for evaluating the claimant’s testimony and statements about symptoms such as pain, fatigue or weakness. First, the ALJ must consider whether the claimant suffers from a medically determinable physical or mental impairment that could reasonably be expected to produce the claimant’s symp toms. If not, the symptoms cannot be found to affect the claimant’s ability to work. SSR 96-7p. Second, if an underlying impairment that could reasonably be expected to produce the claimant’s symptoms has been shown, the ALJ must determine the extent to which the claimed symptoms limit the claimant’s ability to work. If the claimant’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the claimant’s statements based on a consideration of the entire case record. SSR 96-7p. The “ALJ may not disregard subjective complaints merely because they are not fully supported by objective medical evidence.” Knight v. Chater, 55 F.3d 309, 314 (7th Cir.1995). Rather, this is but one factor to consider, along with the claimant’s daily activities; the location, duration, frequency and intensity of the pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side effects of medication the claimant takes; treatment other than medication; any other measures the claimant has used to relieve the pain or other symptoms; and functional limitations and restrictions. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. While the ALJ need not elaborate on each of these factors when making a credibility determination, he must sufficiently articulate his assessment of the evidence to assure the court that he considered the important evidence and to enable the court" }, { "docid": "16305730", "title": "", "text": "forth his or her reasons ‘with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.’ ” Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999) (quoting Gallardo v. Apfel, No. 96-9435, 1999 WL 185253, at *5 (S.D.N.Y. Mar. 25, 1999)). An ALJ must provide specific reasons for his credibility finding; this rationale must be sufficiently specific to make clear to the claimant and reviewing courts what weight the ALJ afforded to the claimant’s statements and the reasons for that weight. See SSR 96-7p. The ALJ’s credibility assessment is entitled to great deference if it is supported by substantial evidence. Murphy v. Barnhart, No. 00-9621, 2003 WL 470572, at *10 (S.D.N.Y. Jan. 21, 2003) (citations omitted). To satisfy the substantial evidence rule, the ALJ’s credibility assessment must be based on a two-step analysis of pertinent evidence in the record. 20 C.F.R. §§ 404.1529, 416.929. The ALJ must first determine whether, based upon the objective medical evidence, a claimant’s medical impairments “could reasonably be expected to produce the pain or other symptoms alleged ....” 20 C.F.R. § 404.1529(a). Second, if the medical evidence establishes the existence of such impairments, the ALJ need only evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms and determine the extent to which they limit that claimant’s capacity to work. See 20 C.F.R. § 404.1529(c). If the objective evidence does not substantiate the intensity, persistence, or limiting effects of the claimant’s symptoms, the ALJ must assess the claimant’s subjective complaints by considering the record in light of the following factors: (1) the claimant’s daily activities; (2) location, duration, frequency, and intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning the claimant’s functional limitations and restrictions due to symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. The ALJ should also consider other factors, such as the claimant’s prior work history. SSR 96-7p; Rivera v." }, { "docid": "21813303", "title": "", "text": "any less reliable than any other type of form; indeed, agency physicians routinely use these types of forms to assess the intensity, persistence, or limiting effects of impairments. . At the time of the ALJ’s decision, there was a Social Security Ruling (\"SSR”) that \"clarified] when the evaluation of symptoms, including pain, ... requires a finding about the credibility of an individual’s statements about pain or other symptom(s) and' its functional effects; ... explained] the factors to be considered in assessing the credibility of the individual’s statements about symptoms; and ... state[d] the importance of explaining the reasons for the finding about the credibility of the individual’s statements in the disability determination or decision.” SSR 96-7p (1996). In March 2016, that ruling was superseded to \"eliminat[e] the use of the term credibility’ from our sub-regulatory policy, as our regulations do not use this term” and to \"clarify that'subjective symptom evaluation is not an examination of an individual’s character” but instead was meant to be consistent with \"our regulatory language regarding symptom evaluation.” SSR 16-3p (2016). This ruling makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to \"evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairments) that could reasonably be expected to produce those symptoms,” and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. Id. . \"ALJs routinely include this statement in their written findings as an introduction to the ALJ’s credibility determination” before \"identifying] what parts of the claimant's testimony were not credible and why.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). The use of this generic language is not itself reversible error, see id., but it inverts the responsibility of an ALJ, which is first to determine the medical impairments of a claimant based on the record and the claimant's credible symptom testimony and only then to determine the claimant’s RFC. By rejecting a claimant's subjective symptoms “to the extent they are inconsistent-with the above residual functional" }, { "docid": "7839252", "title": "", "text": "to consider the consistency of Dr. Callaghan’s opinion with the opinions of other treating, examining, and reviewing medical sources. Although the ALJ discussed the weight to afford these physicians’ opinions, he did not specify how or to what extent he considered these opinions when deciding to assign little weight to Dr. Callaghan’s opinions. Because of these errors, substantial evidence does not support the decision to afford little weight to Dr. Callaghan’s opinions of Gerstner’s limitations from mental impairments, and the case must be remanded for reconsideration of his opinion, see Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir. 2016); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011). B. Adverse Credibility Determination Gerstner also contends that the ALJ wrongly discounted her testimony about the extent of her pain, from fibro-myalgia. The ALJ, using familiar .boilerplate, said that the “claimant’s , statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” Gerstner argues that the ALJ discredited her complaints of intermittent fibromyalgia pain by overstating findings from examining physicians’ diagnostic 'tests, in which she walked, moved, sensed touch, and had no spasms or tenderness. She argues further that the ALJ wrongly discredited her pain complaints by misstating medical evidence from two examining physicians who recommended that, she engage- in unspecified physical activity. She contends also that the ALJ drew an unwarranted inference that her pain was not disabling because she went six months without fibromyalgia drugs, but the ALJ never considered the reason she offered for that medication gap. Lastly, Gerstner argues that the ALJ wrongly concluded that she could work based on a physician’s notation that she had searched for employment. We agree with Gerstner that the ALJ’s adverse credibility determination must be overturned. This court will overturn an ALJ’s adverse credibility finding if it is patently wrong. See Larson v. Astrue, 615 F.3d 744, 745 (7th Cir.2010); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). The ALJ here overstated test results and treatment recommendations and drew unjustified inferences from Gerstner’s medication gap and job search. First, the ALJ overstated findings" }, { "docid": "21813302", "title": "", "text": "Dr. Galhotra cited no medical evidence for the restrictions he assessed.” Finally, the district court noted the \"normal physical exams of [Trevizo's] back and joints” in Dr. Galhotra’s records as a basis for finding his opinion was inconsistent with his treatment notes. First, we rely only on the ALJ’s stated bases for rejecting Trevi-zo's disability claims. See Garrison, 759 F.3d at 1009. Because the ALJ did not provide these explanations herself as a reason to reject Dr. Galhotra’s opinion, the district court erred in looking to the remainder of the record to support the ALJ's decision, and we cannot affirm on those grounds. Moreover, the ALJ was not entitled to reject the responses of a treating physician without specific and legitimate reasons for doing so, even where those responses were provided on a “check-the-box” form, were not accompanied by comments, and did not indicate to the ALJ the basis for the physician’s answers. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). Finally, there is no authority that a “check- the-box” form is any less reliable than any other type of form; indeed, agency physicians routinely use these types of forms to assess the intensity, persistence, or limiting effects of impairments. . At the time of the ALJ’s decision, there was a Social Security Ruling (\"SSR”) that \"clarified] when the evaluation of symptoms, including pain, ... requires a finding about the credibility of an individual’s statements about pain or other symptom(s) and' its functional effects; ... explained] the factors to be considered in assessing the credibility of the individual’s statements about symptoms; and ... state[d] the importance of explaining the reasons for the finding about the credibility of the individual’s statements in the disability determination or decision.” SSR 96-7p (1996). In March 2016, that ruling was superseded to \"eliminat[e] the use of the term credibility’ from our sub-regulatory policy, as our regulations do not use this term” and to \"clarify that'subjective symptom evaluation is not an examination of an individual’s character” but instead was meant to be consistent with \"our regulatory language regarding symptom evaluation.” SSR 16-3p (2016)." }, { "docid": "17483640", "title": "", "text": "about symptoms alone may not establish a disability, the ALJ follows a two-step analysis for evaluating assertions of pain and other limitations. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). First, the ALJ must weigh whether “the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Id. (citing 20 C.F.R. § 404.1529(b)). If the answer at the first step of the analysis is yes, the ALJ proceeds to the second step and considers “the extent to which [the claimant’s] symp toms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (citing 20 C.F.R. § 404.1529(a)) (internal quotation marks omitted). Because “an individual’s symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone,” the ALJ may take into account a variety of other considerations as evidence. Pena, 2008 WL 5111317, at *11 (citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)). These include: a claimant’s daily activities; the location, duration, frequency, and intensity of the claimant’s pain or other symptoms; factors that aggravate the symptoms; treatment and medication necessitated by the pain or other symptoms and their effects; other alleviating measures taken by the claimant; and other factors that relate to the claimant’s functional limitations and restrictions stemming from pain or other symptoms. Id. B. The ALJ’s Decision In his March 13, 2013 decision, the ALJ concluded that Craig was not disabled as defined by the Social Security Act. R. at 21. Following the five-step inquiry, at step one the ALJ found that Craig had not been engaged in substantial gainful activity since January 1, 2011, the amended onset date of Craig’s impairments. Id. at 17. At step two, the ALJ found that Craig had the severe impairment of diabetes mellitus. Id. The ALJ also found that Craig’s mental impairment of mood disorder was “nonsevere” because it did not cause more than minimal limitation in her ability to perform basic mental work activities." }, { "docid": "16305731", "title": "", "text": "alleged ....” 20 C.F.R. § 404.1529(a). Second, if the medical evidence establishes the existence of such impairments, the ALJ need only evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms and determine the extent to which they limit that claimant’s capacity to work. See 20 C.F.R. § 404.1529(c). If the objective evidence does not substantiate the intensity, persistence, or limiting effects of the claimant’s symptoms, the ALJ must assess the claimant’s subjective complaints by considering the record in light of the following factors: (1) the claimant’s daily activities; (2) location, duration, frequency, and intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning the claimant’s functional limitations and restrictions due to symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. The ALJ should also consider other factors, such as the claimant’s prior work history. SSR 96-7p; Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.1983) (“A claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability.”). The ALJ failed to follow the above requirements. First, he did not address the step one requirement of determining whether based upon the objective medical evidence, Plaintiffs medical impairments “could reasonably be expected to produce the pain or other symptoms alleged.... ” 20 C.F.R. § 404.1529(a). Rather, the ALJ simply discounts Plaintiffs subjective complaints due to its inconsistency with the record. He does not note what in the record is inconsistent. In fact, the record indicates that Plaintiff is communicatively disabled. R. 143, 150. Moreover, the record, as noted above, does not indicate that Plaintiff is capable of performing medium work. The ALJ may be referring to Plaintiffs account of his experiencing fatigue from concentrating over the ringing in his ears. Nothing in the record suggests that this symptom is inconsistent with Plaintiffs documented impairments. Where a plaintiffs subjective account finds some support in the record," }, { "docid": "22575121", "title": "", "text": "articulate her reasons for accepting the state agency physicians’ determination of not disabled. Id. SSR 83-20: Onset Date Scheck claims that the ALJ violated SSR 83-20 by not consulting a medical expert in order to determine the onset date of his alleged disability. He argues that medical evidence from after his date last insured can be related back to the relevant time period to show disability. After wading through the record and reviewing the relevant case law, we find Scheck’s arguments relating to onset date to be misplaced. SSR 83-20 addresses the situation in which an administrative law judge makes a finding that an individual is disabled as of an application date and the question arises as to whether the disability arose at an earlier time. See, e.g., Lichter v. Bowen, 814 F.2d 430, 434 (7th Cir.1987); Campbell v. Chater, 932 F.Supp. 1072, 1075 (N.D.Ill.1996); SSR 83-20. The ALJ did not find that Scheck was disabled, and therefore, there was no need to find an onset date. In short, SSR 83-20 does not apply. Residual Functioning Capacity — Steps and 5 Having failed at step three, Scheck must show that he has insufficient residual functioning capacity to perform his past work. Stevenson, 105 F.3d at 1154. In making such a determination, the ALJ must consider whether there is an underlying “determinable physical or mental impairment that could reasonably be expected to produce the symptoms.” SSR 96-7p. Once this has been established, the ALJ must further evaluate the “intensity, persistence, and functionally limiting effects of the symptoms” in order to find whether those symptoms “affect the individual’s ability to do basic work activities.” Id. As the ALJ noted, “[ijnherent in such analysis, of course, is an assessment of the Claimant’s credibility.” (Br. of Plaintiff-Appellant at A-7.) The credibility of the claimant is then considered in light of “the entire case record, including the objective medical evidence, the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence" }, { "docid": "15054725", "title": "", "text": "the ALJ did err in discussing the Listings, the error is harmless. Further, the ALJ spent considerable time discussing plaintiffs obesity and its potential effect on his ability to work (Tr. at 21-22, 24-25), and I cannot deem his analysis on this issue perfunctory. D. Credibility 1. Legal Standard In evaluating the credibility of a claimant’s allegations of pain or other disabling symptoms, the ALJ must follow a two-step process. See SSR 96-7p. First, the ALJ must determine whether the claimant suffers from some medically determinable impairment that could reasonably be expected to produce the symptoms. If not, the symptoms cannot be found to affect his ability to work. Second, if the ALJ finds that the claimant has an impairment that could produce the symptoms alleged, the ALJ must determine the extent to which they limit his ability to work. SSR 96-7p. In making this determination, the ALJ may not discredit a claimant’s testimony about his pain or other limitations based solely on a lack of support in the medical evidence. Villano, 556 F.3d at 562; Moss v. Astrue, 555 F.3d 556, 561 (7th Cir.2009). Rather, the ALJ must consider all of the evidence, including the claimant’s daily activities; the location, duration, frequency and inten sity of the claimant’s pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side effects of any medication the claimant takes to alleviate pain or other symptoms; treatment, other than medication, for relief of pain or other symptoms; any measures the claimant uses to relieve pain or other symptoms; and any other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. The ALJ must, under SSR 96-7p, provide specific reasons for a credibility determination, grounded in the evidence and articulated in the decision. See Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.2003). Such reasons may not be implied or supplied later by the Commissioner’s lawyers. Golembiewski, 322 F.3d at 916. The court generally reviews an ALJ’s credibility determination deferentially, reversing only if it is patently wrong. Craft v. Astrue," }, { "docid": "1066044", "title": "", "text": "“[the] ALJ must give serious consideration to a claimant’s subjective complaints ..., even where those complaints are not supported by objective evidence.” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir.1993) (citing Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985)); see also SSR 96-7p, 1996 WL 374186, at *1 (“An individual’s statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his ... ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.”). The ALJ concluded that the objective medical evidence established that Plaintiffs medically determinable impairments — depression and\" anxiety — could reasonably be expected to produce her symptoms (i.e. constant anxiety and depression, inability to focus on task or follow directions, fear of being around people, difficulty sleeping, and paranoia). R. at 13. However, in evaluating the credibility of Plaintiffs subjective complaints regarding the severity of those impairments, the ALJ relied in part on evidence of the extent of Plaintiffs daily activities of caring for her two children and a younger brother. R. at 14. The ALJ specifically noted that Plaintiff was able “to cook, clean and do other routine household activities such as laundry and vacuuming.” R. at 13. Plaintiff does not disagree that Plaintiffs daily activities may properly be considered in evaluating her subjective complaints as to the severity of her mental impairments. See SSR 96-7p, 1996 WL 374186, at *3 (stating that when assessing the credibility of an individual’s statements as to her symptoms, the adjudicator may consider evidence of individual’s daily activities). Plaintiff argues, however, that Plaintiffs particular daily activities are not proper indicators of her credibility in light of the Third Circuit’s decision in Smith v. Califano, 637 F.2d 968 (3d Cir.1981). In Smith, the Third Circuit reversed the District Court’s grant of summary judgment in favor of the Secretary, concluding that the ALJ improperly discounted the claimant’s allegations of severe pain as a disability because of the claimant’s statements that “he had full use of his hands, arms and legs, does shopping and last fall" } ]

[ { "docid": "22695152", "title": "", "text": "Zhu has suffered past persecution or if she has a well-founded fear of future persecution. The BIA, utilizing its expertise as an agency skilled in making such evaluations, can address these issues and, if unsatisfied, Zhu can appeal. If the BIA decides not to address the withholding of removal claim, then the IJ’s decision is a final agency determination subject to review again in this Court. In other words, we are neither deciding the merits of Zhu’s claim nor prohibiting her from pursuing the merits of her claim at some later date. On remand, the BIA issued a terse opinion, holding that the IJ did not err in “finding the respondent’s application for asylum untimely, without adequate excuse, or ... in his alternative denial of her application on the merits.” Specifically, the BIA stated, [w]ith regard to timeliness, we adopt and affirm the [IJJ’s ruling that the application for asylum was untimely filed and did not satisfy any of the regulatory excuses for such untimeliness .... [I]n this case, we agree with the [IJ] that the respondent failed to file her asylum application within a reasonable amount of time. Furthermore, we agree with the [IJ]’s finding that the respondent failed to establish past persecution or a well-founded fear of future persecution. We note that the respondent testified that the government did not force her to have the abortion, nor did she have any problems with the government due to her pregnancy. From the record, it appears that the respondent made a decision and chose to have an abortion. Thus, despite our clear instruction, the BIA did not define the term “forced” under 8 U.S.C. § 1101(a)(42). It dismissed Zhu’s appeal of the IJ’s denial of her petition. Zhu filed this petition, challenging the BIA’s order. II. APPLICABLE LAW AND ANALYSIS A. Standard of Review We generally have authority to review only the decision of the BIA. When the IJ’s ruling affects the BIA’s decision, however, we also review the decision of the IJ. With respect to timeliness, the BIA expressly adopted and affirmed the IJ’s findings and holding, so we" } ]

[ { "docid": "22386937", "title": "", "text": "reasonable probability that Sowe “would suffer other serious harm upon removal to Sierra Leone.” AR 3. Sowe argues this was error because his arguments relating to asylum and withholding of removal establish that he “faces a reasonable likelihood of other serious harm if forced to return to Sierra Leone.” We disagree. The evidence of changed country conditions effectively rebutted the presumption that he would suffer future persecution. Furthermore, to be eligible for asylum pursuant to section 1208.13(b)(l)(iii)(B), Sowe must show “ ‘other serious harm’ aside from persecution.” Recinos de Leon v. Gonzales, 400 F.3d 1185, 1190 (9th Cir.2005). Sowe has failed to show that the BIA erred in determining that he was not eligible for asylum pursuant to section 1208.13(b)(l)(iii)(B). E Sowe contends that he is eligible for withholding of removal. In Gonzalez-Hernandez, we concluded that the BIA correctly denied an asylum claim because “the INS rebutted the presumption that Gonzalez has a well-founded fear of future persecution.” 336 F.3d at 998. When the government rebuts an applicant’s well-founded fear of future persecution, it defeats the applicant’s asylum claim, and his or her claim for withholding of removal. See id. at 1001 n. 5 (holding that because the applicant and his family “do not have a well-founded fear of persecution, it necessarily follows that they do not qualify for withholding of removal”). Therefore, the BIA’s findings regarding changed country conditions also defeat Sowe’s withholding of removal claim. F Sowe argues that the BIA erred in denying his CAT claim. “[T]o be eligible for relief under [CAT], a petitioner must show ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001) (quoting 8 C.F.R. § 208.16(c)(2)). The BIA concluded that Sowe “has not established a fear of the Sierra Leonean government and current country conditions ... do not suggest that if the respondent is removed to Sierra Leone he will more likely than not be tortured.” AR 3. Sowe contends that, in reaching this conclusion, the BIA implicitly held" }, { "docid": "22386927", "title": "", "text": "a grant of asylum in the absence of a well-founded fear of future persecution (see Matter of Chen, 20 I & N Dec. 16 (BIA 1989)); nor do we find there to be a reasonable possibility that the respondent may suffer other serious harm upon removal to Sierra Leone. See 8 C.F.R. §§ 1208.13(b)(1)(iii)(A), (B). AR 3. The BIA did not review the IJ’s adverse credibility findings. It stated: “We need not reach the issue whether the adverse credibility determination was correct.” Id. The BIA concluded that Sowe had failed to establish his eligibility for asylum and withholding of removal. It also determined that Sowe had failed to demonstrate that if removed to Sierra Leone, he would more likely than not be tortured, as required for relief under CAT. Sowe’s timely petition for review was filed on June 7, 2006. Ill “The BIA’s decision that an alien has not established eligibility for asylum is reviewed for substantial evidence.” Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir.2007). “We review the IJ’s factual findings regarding changed country conditions for substantial evidence.” Smolniakova v. Gonzales, 422 F.3d 1037, 1052 (9th Cir.2005). We also review for substantial evidence the BIA’s determination that a petitioner has not qualified for withholding of removal, and that a petitioner is ineligible for CAT relief. Kaiser v. Ashcroft, 390 F.3d 653, 657 (9th Cir.2004); Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). Sowe’s petition for review challenges the decisions of the IJ and the BIA on several grounds. A Sowe contends that both the IJ and the BIA erred in denying his asylum claim on the ground that changed country conditions made it safe for him to return to Sierra Leone. Unless there is reason to grant discretionary relief pursuant to 8 C.F.R. § 1208.13(b)(l)(iii), an asylum application will be denied if “[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. §" }, { "docid": "22412883", "title": "", "text": "implicating different equities, we hold that a request to stay a voluntary departure period is not implicit in a motion to stay removal. Accordingly, we will deny Sandie the relief he seeks. I. Sandie is a citizen and native of Sierra Leone. He arrived in the United States in December 2003 to attend high school for one semester, entering as a non-immigrant J-l visitor with authorization to remain until June 9, 2004. Sandie remained in the United States beyond that date. On March 5, 2005, he applied for asylum, withholding of removal, and protection pursuant to the Convention Against Torture (CAT). In April 2005, the Department of Homeland Security initiated removal proceedings against Sandie. Before the Immigration Court, Sandie conceded removability and renewed his application for asylum, withholding of removal, and protection under CAT. The IJ heard Sandie testify in support of his application on November 22, 2005. She denied Sandie’s application on March 24, 2006, finding that Sandie’s testimony was not credible and that, even if his testimony were viewed as “weak” instead of not credible, he failed to meet his burden of proof due to a lack of reliable evidence to corroborate his testimony. At the same time, the IJ granted Sandie’s request to depart voluntarily from the United States. Sandie appealed the IJ’s decision denying his application for asylum. On February 23, 2007, the BIA affirmed the IJ’s determination that Sandie failed to corroborate his story so that even if Sandie’s testimony were presumed credi ble, he did not meet his burden of proof. The BIA also concluded that Sandie had not established that his refusal to become the Supreme Leader of the Wonde & Poro Society was cognizable as a political opinion under the Immigration and Nationality Act, which requires fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101 (a)(42) (A). This petition for review followed. II. We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252. The BIA focused its review on the IJ’s determination that Sandie failed" }, { "docid": "23696126", "title": "", "text": "SYKES, Circuit Judge. Abdul Khan is a native and citizen of Pakistan who entered the United States with his family in 1998. They remained here after their visitors’ visas expired, and in 2003 Khan applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). His family members are derivative applicants. An Immigration Judge (“IJ”) heard the claims and denied relief, concluding that Khan’s asylum application was untimely and the delay was not excused by extraordinary circumstances; that Khan failed to show he had suffered politically motivated persecution in Pakistan; and that Khan had failed to show a clear probability that he would be persecuted or tortured if he returned to Pakistan. The Board of Immigration Appeals (“BIA”) affirmed. Khan then moved to reopen, presenting what he characterized as new evidence about his physical and mental condition that he claimed undermined the IJ’s decisions. The BIA declined to reopen the case. Khan asks us to review each of these decisions. We dismiss in part and deny in part the petitions for review. Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the BIA’s determinations that Khan’s asylum claim was untimely and the delay was not excused by extraordinary circumstances. The REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a)(1)(h), 119 Stat. 231, 310-11, permits judicial review of constitutional claims or questions of law; Khan’s challenges to the immigration agency’s timeliness and “extraordinary circumstances” determinations address only factual and discretionary issues and therefore lie outside our review jurisdiction. See Vasile v. Gonzales, 417 F.3d 766 (7th Cir.2005). We also conclude that substantial evidence supports the agency’s denial of withholding of removal and protection against removal under the CAT. Finally, to the extent we have jurisdiction to review the denial of Khan’s motion to reopen, we conclude that the BIA did not abuse its discretion in determining that Khan’s “new evidence” was neither new nor material. I. Background Khan is a Mohajir, a term used to describe Pakistanis of Indian descent. Because Mohajirs faced difficulties competing with other Pakistanis for jobs and political influence, some Mohajirs joined" }, { "docid": "23081842", "title": "", "text": "PER CURIAM: Petitioner Omaro Jalloh, a citizen of Sierra Leone, petitions for review of a June 13, 2006 decision of the Board of Immigration Appeals (“BIA”) adopting and affirming Immigration Judge (“IJ”) Sarah M. Burr’s decision dated April 26, 2004, denying Jalloh’s applications for asylum, withholding of removal, and relief pursuant to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (“CAT”). In re Omaro Jalloh, No. [ AXX XXX XXX ] (B.I.A. June 13, 2006), aff'g No. [ AXX XXX XXX ] (Immg. Ct. N.Y. City Apr. 26, 2004). Jalloh argues principally that substantial evidence does not support the BIA’s finding that his past persecution was not so severe as to warrant a grant of asylum notwithstanding the fact that Jal-loh has no well-founded fear of future persecution. In light of the fact that Jalloh provided no evidence of long-lasting physical or psychological effects of the persecution he experienced, the BIA’s decision to deny “humanitarian asylum” was supported by substantial evidence. BACKGROUND Omaro Jalloh is a citizen of Sierra Leone. He is a member of the Fula tribe. He arrived in the United States on July 14, 2001, and was served with a Notice to Appear on July 1, 2002, charging him with removability on the grounds that he lacked a valid entry document. Jalloh conceded removability and applied for asylum, withholding, and CAT relief. The facts below are taken from his testimony before the IJ, as well as affidavits submitted with his applications for relief. In 1991 civil war broke out in Sierra Leone between the Revolutionary United Front (“RUF”) and the Civil Defense Force, a government militia. Jalloh testified before the IJ that, in 1994, he joined a trader’s union supporting democracy in Sierra Leone. Jalloh also supported the Sierra Leone People’s Party (“SLPP”), whose leader was Tejan Kabbah. Kabbah was elected president in 1996, but a military coup led by the RUF and the Armed Forces Revolutionary Council (“AFRC”) overthrew his SLPP government the next year. Members" }, { "docid": "16263441", "title": "", "text": "237-238 (Traxler, C.J., concurring) (citing Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) (“[D]eference to [the agency’s] statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.”)); see also Cuevas-Gaspar, 430 F.3d at 1032 (Fernandez, J., dissenting). We hold that the “continuous residence” requirement cannot be met via imputation and that the statutory term “most recent designation” applies to the original designation of a state for TPS and not to subsequent extensions. Accordingly, because Petitioners have indisputably failed to personally satisfy the “continuous residence” and “continuous physical presence” requirements, they are statutorily ineligible for TPS and therefore we will deny their petitions for review. See 8 U.S.C. § 1254a(c)(1)(A)(i)-(ii). V. We are left with the matter of De Leon-Ochoa’s petition for review of the BIA’s denial of his applications for asylum, withholding of removal, and CAT protection. For the reasons that follow, we will deny review of the BIA’s order on this issue. We review the BIA’s decision for substantial evidence, and factual determinations are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). An alien may be granted asylum if he is a “refugee” who is “unable or unwilling” to return to his native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ...” 8 U.S.C. § 1101(a)(42). De Leon-Ochoa conceded that he did not suffer past persecution and therefore to prevail on his claim he must establish a well-founded fear of persecution if returned to Honduras, by demonstrating both a subjective and an objective fear of future persecution. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005). We have reviewed the record and conclude that there was substantial evidence to support the IJ and BIA’s denial of De Leon-Ochoa’s application for asylum. Petitioner claims he is in danger of future persecution based on a long-standing interfamily blood" }, { "docid": "22412882", "title": "", "text": "OPINION SMITH, Circuit Judge. Emmanuel Tango Sandie petitions for review of a Board of Immigration Appeals (BIA) decision denying him asylum. Sandie claims he has a well-founded fear of persecution. He alleges that a secret group, the Wonde & Poro Society, will kill him, if he returns to his native Sierra Leone, because he refuses to become their Supreme Leader. Alternatively, if he were to acquiesce and become Supreme Leader of this group, he claims that he would be tortured and forced to commit murder as part of its leadership initiation ritual. The BIA affirmed the Immigration Judge’s (IJ) determination that Sandie failed to corroborate his story and so failed to carry his burden of proof. Because the BIA committed no error in reviewing the IJ’s corroboration determination, we will deny Sandie’s petition. Sandie successfully moved to stay his removal while his petition for review was pending. Subsequently, Sandie sought clarification that his motion to stay removal implicitly included a request to stay the voluntary departure period. Because removal and voluntary departure are different measures implicating different equities, we hold that a request to stay a voluntary departure period is not implicit in a motion to stay removal. Accordingly, we will deny Sandie the relief he seeks. I. Sandie is a citizen and native of Sierra Leone. He arrived in the United States in December 2003 to attend high school for one semester, entering as a non-immigrant J-l visitor with authorization to remain until June 9, 2004. Sandie remained in the United States beyond that date. On March 5, 2005, he applied for asylum, withholding of removal, and protection pursuant to the Convention Against Torture (CAT). In April 2005, the Department of Homeland Security initiated removal proceedings against Sandie. Before the Immigration Court, Sandie conceded removability and renewed his application for asylum, withholding of removal, and protection under CAT. The IJ heard Sandie testify in support of his application on November 22, 2005. She denied Sandie’s application on March 24, 2006, finding that Sandie’s testimony was not credible and that, even if his testimony were viewed as “weak” instead of" }, { "docid": "22704645", "title": "", "text": "OPINION OF THE COURT SMITH, Circuit Judge. I. INTRODUCTION Petitioner Sulaiman Tarawally appeals the denial of his application for asylum and for withholding of removal under the Immigration and Nationality Act, and his request for relief under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture” or “Convention”). We now add our voice to the chorus of other circuits which have held that a court of appeals lacks jurisdiction to review an asylum petition that an Immigration Judge (“IJ”) or Board of Immigration Appeals (“BIA”) deems untimely. In reaching the merits of the petitioner’s requests for withholding of removal and relief under the Convention Against Torture, we conclude that the Immigration Judge’s finding that Tarawally was not likely to be persecuted or tortured was supported by substantial evidence. II. FACTS Sulaiman Tarawally is a citizen of Sierra Leone who entered the United States in January 1998 as a visitor for pleasure with authorization to remain until February 10, 1998. Tarawally filed an application for Temporary Protected Status, which was eventually denied. Sometime after October 12, 1999, he filed an application for asylum, withholding of removal and relief under the Convention Against Torture. During the asylum hearing that followed, Tarawally testified to his personal history in Sierra Leone. Tarawally’s father was chairman of the All People’s Congress (“APC”) for the Kono district of Sierra Leone. The APC was the ruling party until a 1992 coup, during which the National Provisional Ruling Council, also known as the Armed Forces Revolutionary Council (“AFRC”), took power. In early 1992, the AFRC arrested Tarawally’s father for his political activities and detained him for about a month. At that time, Tarawally was living in the town of Bama-konta, some nine to twelve miles away from his family. Sometime after his father’s detention, in March of 1992, Tara-wally was visiting his family’s home and awoke one night to the sound of gunfire. When he discovered that the rest of his family was missing, he immediately left Kono. He spent three days walking to the town of" }, { "docid": "14345040", "title": "", "text": "year 2000, that the country conditions in Sierra Leone were such that the Respondent need not fear returning to Sierra Leone.”). Thus, because the issue was insufficiently raised in the opening brief, we agree that it has been waived. See Becker v. Kroll, 494 F.3d 904, 913 n. 6 (10th Cir.2007); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir.2002). But the BIA’s findings regarding country conditions explicitly applied only to Kabba’s CAT claim. The BIA wrote that “[Kabba] has not alleged a fear of the Sierra Leonean government and current country conditions, as discussed above, do not suggest that if the respondent is removed to Sierra Leone he will be more likely than not to be tortured, as required for relief under the [CAT],” citing to regulations relating to the CAT. Kabba’s waiver of this issue therefore affects only his claim for relief under the CAT and not the BIA’s decision on asylum and restriction on removal, which was predicated solely on its disagreement with the IJ’s credibility findings. Ill In sum, we conclude as a matter of law that the BIA did not properly review the IJ’s credibility finding under the clearly erroneous standard. We therefore GRANT the petition for review as to the asylum and restriction on removal requests, VACATE the decision of the BIA on those requests, and REMAND to the agency for further proceedings consistent with our decision. See Ramirez-Peyro, 477 F.3d at 641; see also Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam) (requiring remand to agency for additional investigation and explanation). We DENY the petition for review on the CAT request. Because our decision vacates the order of removal, our temporary stay is dissolved as moot. . Although the parties refer to \"withholding of removal,” this language was changed to \"restriction on removal” with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. We use the statutory term \"restriction on removal.” See Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n. 2 (10th Cir.2008). . Although the asylum application indicated that his" }, { "docid": "16263442", "title": "", "text": "on this issue. We review the BIA’s decision for substantial evidence, and factual determinations are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). An alien may be granted asylum if he is a “refugee” who is “unable or unwilling” to return to his native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ...” 8 U.S.C. § 1101(a)(42). De Leon-Ochoa conceded that he did not suffer past persecution and therefore to prevail on his claim he must establish a well-founded fear of persecution if returned to Honduras, by demonstrating both a subjective and an objective fear of future persecution. See, e.g., Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005). We have reviewed the record and conclude that there was substantial evidence to support the IJ and BIA’s denial of De Leon-Ochoa’s application for asylum. Petitioner claims he is in danger of future persecution based on a long-standing interfamily blood feud. His contentions are belied by the record. Petitioner’s brothers have remained in Honduras, unmolested. Petitioner himself lived in Honduras for six years after the last alleged feud-based murder, unmolested. Petitioner’s own documentary evidence indicates that the blood feud upon which his asylum claim is premised ended in 1996, and he has presented no evidence of additional inter-family strife in the last decade. Accordingly, we cannot conclude that the IJ and BIA erred in denying De Leon-Ochoa’s application for asylum. De Leon-Ochoa’s failure to meet his burden of proof for asylum necessarily impels the conclusion that he cannot satisfy his burden of proof for withholding of removal. See, e.g., Guo v. Ashcroft, 386 F.3d 556, 561 n. 4 (3d Cir.2004). Finally, to qualify for protection under the CAT, De Leon-Ochoa must prove that, “it is more likely than not that he [] would be tortured if removed to [Honduras].” 8 C.F.R. § 1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166, 174- 175 (3d Cir.2002). Petitioner has identified no evidence to compel the conclusion that it" }, { "docid": "22386928", "title": "", "text": "country conditions for substantial evidence.” Smolniakova v. Gonzales, 422 F.3d 1037, 1052 (9th Cir.2005). We also review for substantial evidence the BIA’s determination that a petitioner has not qualified for withholding of removal, and that a petitioner is ineligible for CAT relief. Kaiser v. Ashcroft, 390 F.3d 653, 657 (9th Cir.2004); Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). Sowe’s petition for review challenges the decisions of the IJ and the BIA on several grounds. A Sowe contends that both the IJ and the BIA erred in denying his asylum claim on the ground that changed country conditions made it safe for him to return to Sierra Leone. Unless there is reason to grant discretionary relief pursuant to 8 C.F.R. § 1208.13(b)(l)(iii), an asylum application will be denied if “[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.13(b)(l)(i)(A). Sowe’s contention that the BIA erred in concluding that the presumption of future persecution had been rebutted by the evidence of changed conditions in Sierra Leone raises a preliminary question as to whether we review the IJ’s resolution of this issue or the BIA’s conclusion. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995) (“Where the Board ... conduces] a de novo review of the record, our review is limited to the decision of the Board except to the extent that the IJ’s opinion is expressly adopted by the Board.”). Here, the BIA did not state whether it was conducting a de novo review of the IJ’s findings regarding country conditions in Sierra Leone. However, its holding regarding country conditions is nearly identical to the IJ’s. “To the extent that the BIA incorporates the IJ’s decision as its own, we treat the IJ’s statement of reasons as the BIA’s and review the IJ’s decision.” Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996). Sowe first asserts that the IJ and the BIA erred" }, { "docid": "4504603", "title": "", "text": "went outdoors following this incident for fear of another confrontation, De Leon’s relatives continued to scream at her from outside her home. The petitioner subsequently met Raoul Mauricio, with whom she lived and had a child (Astrid Mauricio). De Leon’s family continued harassing her, and the harassment persisted after Raoul Mauricio emigrated to the United States in 2010. The petitioner recalls that members of De Leon’s family told her that “now that you are alone, we can deal with you, bitch.” On or about April 26, 2014, the petitioner, accompanied by her minor daughter Astrid Mauricio, crossed the border into Texas and entered the United States without inspection. She was detained upon entry and placed in removal proceedings. Conceding removability, she cross-applied for asylum, withholding of removal, and CAT protection. In support, she claimed both past persecution and a well-founded fear of future persecution on account of her membership in a particular social group. At the conclusion of her removal hearing, the immigration judge (IJ) found the petitioner credible, but denied relief. The IJ concluded that the petitioner was ineligible for either asylum or withholding of removal because she was unable to show that the harm she suffered in Guatemala was on account of a statutorily protected ground. The IJ also concluded that the petitioner did not qualify for CAT protection because she had not established a likelihood that, if repatriated, she would be subjected to torture with the consent, acquiescence, or willful blindness of- a public official. Following the petitioner’s unsuccessful appeal to the BIA, she prosecuted this petition for judicial review. II. ANALYSIS Judicial review in immigration cases typically focuses on the final decision of the BIA. See Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015). “But where, as here, the BIA accepts the IJ’s findings and reasoning yet adds its own gloss, we review the two decisions as a unit.” Id. (quoting Moreno v. Holder, 749 F.3d 40, 43 (1st Cir. 2014)). We proceed accordingly. In the course of our review, “[c]laims of legal error engender de novo review, with some deference to the agency’s" }, { "docid": "22061855", "title": "", "text": "be subject to future torture in Guinea.” Id. Concluding that Fadiga had therefore “failed to demonstrate prima facie eligibility” for withholding under either section 241(b)(3) of INA or Article III of the CAT, and that he thus could not establish “that he has been prejudiced by the actions of his former attorney,” the BIA dismissed Fadiga’s appeal and denied his motion to reopen. Id. Fadiga filed a timely petition for review in this court, and he now challenges the final order of removal on the ground that the BIA erroneously denied his motion to reopen as to withholding of removal under the INA and protection under the CAT. II. JURISDICTION AND SCOPE OF REVIEW The Immigration Court had jurisdiction over Fadiga’s application for asylum, withholding of removal and protection under the CAT pursuant to 8 C.F.R. § 1208.2(b). The BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b) and was authorized to consider Fadiga’s motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(4). See Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir.2005) (motion to reopen filed during pendency of appeal is properly heard by BIA). We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). See Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). Because “there is no ‘final order’ until the BIA acts,” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001), we review only the decision of the BIA, “absent special circumstances not present here.” Id. at 545. “[W]e review the [BIA’s] denial of a motion to reopen for abuse of discretion.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). “Under the abuse of discretion standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002) (internal quotation marks omitted). However, we review de novo the Board’s determination of an underlying procedural due process claim. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1362, 164 L.Ed.2d 72 (2006); De Leon-Reynoso v. Ashcroft, 293 F.3d" }, { "docid": "16998760", "title": "", "text": "OPINION REINHARDT, Circuit Judge: Kurniawan Salim (“Salim”), a native and citizen of Indonesia, petitions for review from the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his asylum and withholding of removal proceedings. Salim is a practicing Catholic, and brings his motion to reopen due to changes in country conditions for Christians in Indonesia since- his initial hearing before an Immigration Judge (“IJ”) in 2006. We conclude that the BIA abused its discretion when it denied Salim’s motion to reopen as untimely. Substantial evidence supports his claim of changed country conditions, and he has presented sufficient evidence of individualized risk to establish a prima facie case for the relief sought. We therefore grant the petition for review and remand for further proceedings consistent with this opinion. I. Factual and Procedural Background Salim arrived in the United States on a tourist visa on January 22, 2001. He and his wife are the parents of two children, ages six and twelve, both of whom were born in the United States and are American citizens. Salim has no criminal record, and since 2004 has worked as a restaurant manager in .California. In 2003, the Department of Homeland Security initiated removal proceedings against Salim for having overstayed his initial visa. In response, Salim submitted an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the basis of persecution he faced in Indonesia due to his Chinese ethnicity. On February 22, 2006, the IJ denied Salim’s asylum application as untimely, and rejected his withholding of removal and CAT claims. The BIA affirmed this decision on September 26, 2007. Salim then appealed to this court, which remanded to the BIA in light of our holding in Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009), that an asylum applicant’s membership in a disfavored group is relevant to his request for withholding of removal. On remand, the BIA again denied Salim’s application for withholding of removal, concluding that Salim had not demonstrated a sufficient individualized risk of persecution on account of his Chinese ethnicity. On October 15, 2012" }, { "docid": "22331344", "title": "", "text": "BOWMAN, Circuit Judge. Ming Ming Wijono petitions for review of an order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and relief under, the United Nations Convention Against Torture (CAT). Wijono is an Indonesian citizen who- alleges that he fears persecution in Indonesia based on his Chinese ethnicity and Christian religion. Because we lack jurisdiction to review the denial of Wijono’s application for asylum and conclude that substantial evidence supports the BIA’s denial of withholding of removal and relief under the CAT, we deny the petition for review. I. Wijono last entered the United States oh January 18, 1997, as a nonimmigrant visitor for business. He was authorized to stay in the United States until February 17, 1997, but he remained past that date. On December 7, 2001, Wijono filed an application for asylum, withholding of removal, and protection under the CAT on grounds that he would be persecuted in Indonesia on account of his Chinese ethnicity and Christian religion. On March 22, 2002, the Immigration and Naturalization Service (INS) initiated removal proceedings against Wijono by issuing a Notice to Appear, which charged that Wijono was removable from the United States as an alien who remained, in the United States without authorization .from the INS after his period of admission had expired. See 8 U.S.C. § 1227(a)(1)(B) (2000). At a hearing before an immigration judge (IJ), Wijono admitted the allegations in the Notice to Appear and conceded re-movability, but renewed his request for asylum, withholding of removal, and protection under the CAT. The IJ determined that Wijono was ineligible for asylum because he failed to file his application for asylum within one year of his arrival in the United States as required by section 208(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(B) (2000). The IJ further concluded that Wi-jono failed to prove that hie was entitled to withholding of removal or relief under the CAT. In lieu of removal, however, the IJ granted Wijono the privilege of voluntarily departing the United States, Wijono appealed to the BIA. The BIA affirmed" }, { "docid": "22405335", "title": "", "text": "PER CURIAM: Petitioner, Merlinda Santoso (“petitioner” or “Santoso”), a native and citizen of Indonesia, seeks review of a September 28, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the January 30, 2006 decision of an immigration judge (“IJ”) denying Santoso’s application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. In her petition to this Court, Santoso argues that the BIA and the IJ failed adequately to address her claim that there exists a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia. BACKGROUND Petitioner arrived in the United States on or about August 2,1999, with authorization to remain for a temporary period not to exceed six moths. On May 23, 2005, nearly six years after her arrival, petitioner filed an application for asylum, withholding of removal, and relief under the CAT. Shortly thereafter, the Department of Homeland Security charged her with removal pursuant to 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than permitted and ordered her to appear before an IJ on September 9, 2005. At her hearing before the IJ, petitioner conceded her removability but requested asylum, withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court. I. Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008)." }, { "docid": "16263443", "title": "", "text": "feud. His contentions are belied by the record. Petitioner’s brothers have remained in Honduras, unmolested. Petitioner himself lived in Honduras for six years after the last alleged feud-based murder, unmolested. Petitioner’s own documentary evidence indicates that the blood feud upon which his asylum claim is premised ended in 1996, and he has presented no evidence of additional inter-family strife in the last decade. Accordingly, we cannot conclude that the IJ and BIA erred in denying De Leon-Ochoa’s application for asylum. De Leon-Ochoa’s failure to meet his burden of proof for asylum necessarily impels the conclusion that he cannot satisfy his burden of proof for withholding of removal. See, e.g., Guo v. Ashcroft, 386 F.3d 556, 561 n. 4 (3d Cir.2004). Finally, to qualify for protection under the CAT, De Leon-Ochoa must prove that, “it is more likely than not that he [] would be tortured if removed to [Honduras].” 8 C.F.R. § 1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166, 174- 175 (3d Cir.2002). Petitioner has identified no evidence to compel the conclusion that it is more likely than not that he will be tortured upon return to Honduras. Accordingly, we agree with the BIA’s denial of his application for protection under the CAT and will deny the petition for review. * * * * * * For the foregoing reasons, we will deny the petitions for review. . The Board had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) & 1240.15. We have jurisdiction over final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). . The Government argues, in the petition for review of Flores-Dominguez, et al., that we should dismiss this case for lack of jurisdiction because the question whether a parent's residency can be imputed for purposes of the TPS program is a nonjusticiable political question. Curiously, the Government does not make this argument in De Leon-Ochoa and L-P-'s petitions for review. We determine that there is no merit to this argument. . Originally the Attorney General was empowered to designate a foreign state for the TPS program. Pursuant to the Homeland Security Act of 2002, the administration" }, { "docid": "22386936", "title": "", "text": "Cir.1996). The BIA denied discretionary relief pursuant to section 1208.13(b)(l)(iii)(A), stating: “[w]e do not find the harm that respondent claims to have suffered, that of being detained and beaten by the RUF, to be sufficiently compelling to support a grant of asylum in the absence of a well-founded fear of future persecution.” The BIA erred in failing to determine whether, assuming the truth of Sowe’s testimony that he witnessed his parents’ murder, the severing of his brother’s hand, and his sister’s kidnaping, he provided compelling reasons for his being unwilling or unable to return to Sierra Leone. Because we lack the authority to act as fact-finders, or to determine credibility in the first instance, we must remand to the BIA the question whether Sowe is eligible for asylum pursuant to section 1208.13(b)(l)(iii)(A). INS v. Orlando Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). Sowe also alleges that the BIA erred in denying him relief pursuant to section 1208.13(b)(l)(iii)(B). As to that claim, the BIA concluded that there was no reasonable probability that Sowe “would suffer other serious harm upon removal to Sierra Leone.” AR 3. Sowe argues this was error because his arguments relating to asylum and withholding of removal establish that he “faces a reasonable likelihood of other serious harm if forced to return to Sierra Leone.” We disagree. The evidence of changed country conditions effectively rebutted the presumption that he would suffer future persecution. Furthermore, to be eligible for asylum pursuant to section 1208.13(b)(l)(iii)(B), Sowe must show “ ‘other serious harm’ aside from persecution.” Recinos de Leon v. Gonzales, 400 F.3d 1185, 1190 (9th Cir.2005). Sowe has failed to show that the BIA erred in determining that he was not eligible for asylum pursuant to section 1208.13(b)(l)(iii)(B). E Sowe contends that he is eligible for withholding of removal. In Gonzalez-Hernandez, we concluded that the BIA correctly denied an asylum claim because “the INS rebutted the presumption that Gonzalez has a well-founded fear of future persecution.” 336 F.3d at 998. When the government rebuts an applicant’s well-founded fear of future persecution, it defeats" }, { "docid": "23007630", "title": "", "text": "PER CURIAM: Josephine Nakimbugwe, a native and citizen of Uganda, was admitted to the United States on May 30, 2001 with authorization to stay until August 30, 2001. She remained in the country past that date, and in August 2002, the Immigration and Naturalization Service began removal proceedings against her. At a hearing, the immigration judge (“IJ”) determined that Nakimbugwe’s removability was established by clear and convincing evidence. Nakimbugwe subsequently applied for asylum and, in the alternative, withholding of removal. The IJ denied the asylum request on the grounds that her application was untimely and that she was not credible. He then denied her application for withholding of removal, finding that Nak-imbugwe had failed to show that it was more likely than not that she would face persecution on her return to Uganda. The Board of Immigration of Appeals (“BIA”) subsequently dismissed Nakim-bugwe’s appeal and adopted the IJ’s findings that her asylum application was untimely and that she had failed to show a likelihood of persecution upon her return. The BIA did not specifically adopt the IJ’s finding that Nakimbugwe was not credible. Nakimbugwe now challenges the BIA’s rulings on both asylum and withholding of removal. We REVERSE the BIA’s holding that the asylum claim was untimely and REMAND the case to the BIA so that it can consider the merits of Ms. Nakim-bugwe’s asylum claim. We AFFIRM the BIA’s denial of withholding of removal. I. STANDARD OF REVIEW Generally, we have authority to review only the decision of the BIA, but where, as here, the BIA only affirms the IJ’s decision without opinion, we review the IJ’s decision. Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir.2006). As we discuss below, the determination of timeliness in this case is purely a question of law, so we review it de novo. We review the IJ’s ruling on withholding of removal under the “substantial evidence” test, and “reversal of the IJ is improper unless we decide not only that the evidence supports a contrary conclusion, but also that the evidence compels it.” Majd, 446 F.3d at 594 (citations omitted). II. THE" }, { "docid": "3055657", "title": "", "text": "ORDER AND OPINION PER CURIAM. ORDER The memorandum disposition filed on February 7, 2008 is withdrawn and the Clerk is ordered to file the attached opinion in its place. OPINION Foday Sillah, a native and citizen of Sierra Leone, applied for asylum, withholding of removal and relief under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied relief and the Board of Immigration Appeals (BIA) dismissed Sillah’s appeal. We hold that we lack jurisdiction to review the denial of the application for asylum and deny the petition for review with respect to withholding of removal. I. Sillah contends first that the IJ erred in finding that he failed to demonstrate that his asylum application was timely filed. The government argues that we have no jurisdiction to review the IJ’s timeliness determination. We determine our jurisdiction de novo. Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir.2004) (citation omitted). An applicant for asylum must “demonstrate[ ] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). The statute further provides that “[n]o court shall have jurisdiction to review any determination under paragraph (2).” Under the REAL ID Act, however, we have jurisdiction to review constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). A “question of law” includes an issue of statutory construction as well as the application .of law to undisputed facts. Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007). Sillah contends that we have jurisdiction to review the IJ’s timeliness determination as a question of law. Citing Ramadan, he argues that given the IJ’s finding that his. testimony in other respects was credible and that his testimony as to his arrival date was not disputed, the issue of the sufficiency of evidence presented a question of law reviewable by this court. The government responds that, to the contrary, because Sillah had not presented clear and convincing evidence of the date of his arrival in the United States, that date remained a disputed question of fact and therefore" } ]

[ { "docid": "17530778", "title": "", "text": "a motion for leave to file a second amended complaint to add the chair’s manufacturer, Tropitone, as a defendant. By that time, discovery was set to conclude in one month, on January 17, 1997. In addition, the court had approved the parties’ proposed pre-trial order just a week before, on December 5,1996. Hence by the time of the motion for leave to amend, nearly all the case’s pre-trial work was complete. According to the district court’s undisputed estimate, allowing the motion would have resulted in at least an additional four months of discovery and would have delayed trial by at least an additional twelve months. These consequential delays put the ball in Acosta’s court, for when “considerable time has elapsed between the filing of the complaint and the motion to amend, the movant has the burden of showing some ‘valid reason for his neglect and delay.’” Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983) (quoting Hayes v. New England Millwork Distribs., Inc., 602 F.2d 15, 19-20 (1st Cir.1979)). The district court could reasonably determine that Acosta failed to carry this burden. On appeal, Acosta argues: (1) that mere delay is not reason enough to deny a motion for leave to amend; (2) that Hilton’s “lack of action forced [Acosta] to wait before amending the complaint”; and (3) that it is only just to allow the addition of Tropitone, who Acosta argues is likely liable for his injuries. The first point is contrary to Supreme Court and circuit precedent holding that, especially where allowing the amendment will cause further delay in the proceedings, “undue delay” in seeking the amendment may be a sufficient basis for denying leave to amend. Foman, 371 U.S. at 178, 83 S.Ct. 227. See Grant, 55 F.3d at 5 (affirming denial of leave after fourteen-month delay); Stepanischen, 722 F.2d at 933 (affirming denial of motion for leave filed after seventeen-month delay); Hayes, 602 F.2d at 19 (“[I]t is clear that ‘undue delay’ can be a basis for denial.”). Even if Acosta were correct that late filing of the proposed amendment was not per" } ]

[ { "docid": "13095814", "title": "", "text": "(quoting LaRocca v. Borden, Inc., 276 F.3d 22, 32 n. 9 (1st Cir.2002)). Among the grounds for denial are “undue delay, bad faith or dilatory motive ... repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [and] futility of amendment.” Id. (alteration and omissions in original) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)) (internal quotation marks omitted). The district court had good reason for disallowing filing the amended complaint: it was far too late. It was also futile, as we explain below. The complaint was first filed on June 23, 2009. Laboy-Alvarado filed a motion to dismiss on September 23, 2009, and Rivera-González answered the complaint on October 9, 2009. Feliciano-Hernández could have moved to amend then, but did not. Instead, plaintiff waited to move to amend until September 6, 2010, nearly a year after the motion to dismiss was filed, and after the court had dismissed the case. We have stated that “[r]egardless of the context, the longer a plaintiff delays, the more likely [a] motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.” Id. (alterations in original) (quoting Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir.2004)) (internal quotation marks omitted). Furthermore, we agree with the district court’s determination that the amended complaint would not have altered its conclusions and so was futile. As the district court stated in the course of ruling that it would not reconsider its judgment, the plaintiff was unable “to demonstrate that Defendants were liable under Section 1983 in his motion for reconsideration,” to which his amended complaint was attached. Feliciano Hernández, 2010 WL 5072567, at *4. The amended complaint contained several attachments purportedly “obtained during discovery, and as result of investigation.” These attachments, which were filed with the district court in Spanish in violation of the local rules, are largely those court filings and related publicly available documents which were" }, { "docid": "14056400", "title": "", "text": "City of East Providence, 970 F.2d 996, 1000 n. 9 (1st Cir.1992); Barrett v. United States, 965 F.2d 1184, 1194 n. 19 (1st Cir.1992))); Gill v. United States, 2009 WL 3152892, at 4 n. 1, 2009 U.S. Dist. LEXIS 88159, at 11 n. 1 (D.Mass.2009) (quoting Natsios, 181 F.3d at 61 n. 17). . Vigneau, 337 F.3d at 68 (quoting Bell, 988 F.2d at 251; citing Rivera-Martinez, 931 F.2d at 151). . Def.'s Mot. J. Pleadings As-Applied Claims Counts Two Through Eight [# 99]. . Farrell v. Burke, 449 F.3d 470, 498 (2d Cir.2006) (Sotomayor, J.). . 561 F.2d 719 (8th Cir.1977). . Pis.’ Opp'n Dels.’ Mot. J. Pleadings As-Applied Claims Counts Two Through Eight & Pis.' Reply Supp. Mot. Amend, 11 [#109] [hereinafter Pis.' Opp'n] (citing Turchick, 561 F.2d at 721 n. 3). . Turchick, 561 F.2d at 721 n. 3 (citing Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 844-45 (1970)). . Hill v. Colorado, 530 U.S. 703, 731-32, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). . Pis.' Opp'n, 12 [# 109] (quoting Pis.’ Mot. Leave File Am. Compl., Ex. A ¶ 119 [# 94]). . Pis.' Opp’n, 12 [# 109] (citing Pis.' Mot. Leave File Am. Compl., Ex. A ¶ 120 [# 94]). . Pis.' Opp’n, 12 [# 109] (citing Pis.' Mot. Leave File Am. Compl., Ex. A ¶ 123 [# 94]); see also id. at 12-13 (”[T]hese as-applied claims were included in the original complaint.” (citing Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief ¶¶ 88, 89, 91 [#1])). . Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief, 16 [# I], . McCullen I, 573 F.Supp.2d at 417; see McCullen II, 571 F.3d at 183-84. . Pis.' Opp’n, 15 [# 109], . McCullen I, 573 F.Supp.2d at 417 (quoting Bl(a)ck Tea Soc’y v. City of Bos., 378 F.3d 8, 12 (1st Cir.2004)). . McCullen II, 571 F.3d at 184 (citing Bl(a)ck Tea Soc’y, 378 F.3d at 12). . Compl. Civil Rights Violations, Declaratory J., & Injunctive" }, { "docid": "5596020", "title": "", "text": "193 F.3d 545, 548-49 (D.C.Cir.1999) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Where the proposed amendment would not survive a motion to dismiss or motion for judgment on the pleadings, leave may be denied on the grounds of futility. See Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.1996); Elliott v. Fed. Bureau of Prisons, 521 F.Supp.2d 41, 49 (D.D.C.2007); Black v. Nat’l Football League Players Ass’n, 87 F.Supp.2d 1, 6 (D.D.C.2000). The proposed third amended complaint would (1) join 758 individual plaintiffs “seek[ing] redress of claims based on the same conduct, transactions and occurrences ... in Plaintiffs’ prior pleadings,” Pis. Mot. to Amend at 1, and (2) add claims for common law fraud and trespass to chattel. Id. Ex. 1 ¶¶ 138, 143. The amendments, however, cure none of the jurisdictional defects regarding the TRNC, compare Compl. ¶ 2 with Pis. Mot. to Amend Ex. 1 ¶ 2, do not plead additional facts to state a claim against the HSBC defendants, and still do not distinguish among the individual HSBC defendants. See Pis. Mot. to Amend. Ex. 1 ¶ 12. The proposed amendments therefore “would not alter this Court’s analysis in any way, and thus would be futile.” Sierra Club v. U.S. Army Corps. of Eng’rs, 64 F.Supp.3d 128, 137, 2014 WL 4066256, at *4 n. 5 (D.D.C. Aug. 18, 2014). Accordingly, the plaintiffs’ motion for leave to file an amended complaint is denied. IV. CONCLUSION For the foregoing reasons, the Court issued an Order on September 30, 2014, granting both the TRNC’s and the HSBC defendants’ motions to dismiss. The Court also denied the plaintiffs’ motion for leave to amend. As there are no remaining defendants, the Court dismissed this action with prejudice. SO ORDERED. . The papers reviewed in connection with the pending motions, and the abbreviations used to identify them throughout this Opinion, are: Plaintiffs’ Second Amended Complaint (“Compl.”) [Dkt. No. 14]; TRNC’s Motion to Dismiss for Lack of Personal Jurisdiction (“TRNC Mot.”) [Dkt. No. 16]; TRNC’s Coun-terstatement of Facts (“TRNC Statement of Facts\") [Dkt. No." }, { "docid": "6342203", "title": "", "text": "First Am. Compl. ¶ 33. . Marlowe Decl. # 1 Ex. D. . Marlowe Decl. # 1 Ex. B. . Mem. in Supp. of Cobalt Pharms., Inc.’s Mot. for Summ. J. as to its Non-Infringement of the '856 Patent at 5-6; Marlowe Decl. # 1 Exs. B, H. . See Decl. of Matthew C. Marlowe in Supp. of Cobalt Pharms., Inc.’s Mot. for Leave to File a Supplemental Br. on Non-Infringement of the '856 Patent (\"Marlowe Decl. # 3”) Ex. A at CA2347. . First Am. Compl. ¶ 27. . First Am. Compl. ¶ 20. . Pis.’ Opp’n to Cobalt Pharms., Inc.’s Mot. to Strike Pis.’ Claim of Willful Infringement at 7. . Cobalt has moved to strike the allegation of willfulness from the amended complaint pursuant to Fed.R.Civ.P. 12(f). In the alternative, Cobalt has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). This court will consider Cobalt’s alternative request and analyze the issue under the Rule 12(c) standard. . Furtick v. Medford Hous. Auth., 963 F.Supp. 64, 67 (D.Mass.1997) (citing Nedder v. Rivier Coll., 944 F.Supp. 111, 120 (D.N.H.1996)). . Petricca v. City of Gardner, 194 F.Supp.2d 1, 4 (D.Mass.2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). . See Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 38 (1st Cir.2004); Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). . See 35 U.S.C. § 271(e)(4) (incorporating by reference 35 U.S.C. § 285). . Glaxo Group Ltd. v. Apotex, Inc., 376 F.3d 1339, 1350 (Fed.Cir.2004). . Id. . Id. at 1350-351 (emphasis added). . Glaxo, 376 F.3d at 1344 (explaining that Apotex’s ANDA was \"atypical” in that it did not include a paragraph IV certification because the patent holder was not required to list the patent in the Orange Book). . Pis.' Opp'n to Cobalt Pharms., Inc.'s Mot. to Strike Pis.' Claim of Willful Infringement at 6-7. . . Glaxo Group Ltd. v. Apotex, Inc., 268 F.Supp.2d 1013, 1035 (N.D.Ill.2003). . Glaxo, 376 F.3d at 1349 (citing Eli Lilly & Co." }, { "docid": "4526310", "title": "", "text": "in the inventions included in the '349 patent. In order to succeed on its misrepresentation claims, MEEI must show that QLT did not intend to comply with these representations at the time they were made. See Doyle v. Hasbro, Inc., 103 F.3d 186, 194 (1st Cir.1996) (“plaintiffs must allege (1) that the statement was knowingly false; (2) that [defendants] made the false statement with the intent to deceive; (3) that the statement was material to the plaintiffs’ decision ...; (4) that the plaintiffs reasonably relied on the statement; and (5) that the plaintiffs were injured as a result of their reliance”) (citations omitted). Since MEEI does not provide sufficient evidence for a reasonable jury to draw this conclusion, we affirm the district court’s grant of summary judgment. C. MEEI’s Motion to Amend “We review the denial of a motion to amend under Rule 15(a) for an abuse of discretion, and we defer to the district court if any adequate reason for the denial is apparent on the record.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir.2004) (internal quotations omitted). In the instant case, we cannot say that the district court abused its discretion in denying MEEI’s motion to amend its complaint concerning its unjust enrichment claim and to include a claim of promissory estoppel. MEEI made its motion to amend more than two years after filing the complaint, after the court had entered summary judgment for QLT on Counts I-IV of MEEI’s complaint and the parties had fully briefed summary judgment arguments on the remaining four counts. “Where the motion to amend is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show ‘substantial and convincing evidence’ to justify a belated attempt to amend a complaint.” Id. (quoting Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.1994)). The district court did not abuse its discretion in determining that MEEI has failed to meet its burden of showing “some valid reason for [its] neglect and delay.” Acosta-Mestre v. Hilton Int’l of Puerto Rico, Inc., 156 F.3d 49," }, { "docid": "23341171", "title": "", "text": "that Marika lacked standing under Title III of the ADA. DISCUSSION A. The Motion to Amend A motion to amend a complaint will be treated differently depending on its timing and the context in which it is filed. A plaintiff is permitted to amend a complaint once as a matter of right prior to the filing of a responsive pleading by the defendant. Fed.R.Civ.P. 15(a). Thereafter, the permission of the court or the consent of the opposing party is required. The default rule mandates that leave to amend is to be “freely given when justice so requires,” id., unless the amendment “would be futile, or reward, inter alia, undue or intended delay.” Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.1994). As a case progresses, and the issues are joined, the burden on a plaintiff seeking to amend a complaint becomes more exacting. Scheduling orders, for example, typically establish a cut-off date for amendments (as was apparently the case here). Once a scheduling order is in place, the liberal default rule is replaced by the more demanding “good cause” standard of Fed.R.Civ.P. 16(b). O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-155 (1st Cir.2004). This standard focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent. Id. Where the motion to amend is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show “substantial and convincing evidence” to justify a belated attempt to amend a complaint. Gold, 30 F.3d at 253. Regardless of the context, the longer a plaintiff delays, the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend. Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 52-53 (1st Cir.1998). Particularly disfavored are motions to amend whose timing prejudices the opposing party by “requiring a re-opening of discovery with additional costs, a significant postponement of the trial, and a likely" }, { "docid": "6342202", "title": "", "text": "21 U.S.C. § 355®. . 21 U.S.C. § 355®(4)(F). . Purepac Pharm. Co. v. Thompson, 354 F.3d 877, 879 (D.C.Cir.2004) (citing 21 U.S.C. § 355®(2)(A) and 21 C.F.R. § 314.94(a)(3)). . See Glaxo Group Ltd. v. Apotex, Inc., 376 F.3d 1339, 1344 (Fed.Cir.2004); 21 U.S.C. § 355(b)(1). . 21 U.S.C. § 355(j)(2)(A)(vii)(IV). . 21 U.S.C. § 3550)(2.)(A)(viii). . See Purepac Pharm. Co., 354 F.3d at 879. . 21 U.S.C. § 355(j)(2)(B)(i). . 21 U.S.C. § 355(j)(5)(B)(iii). . Glaxo, Inc. v. Novopharm Ltd., 110 F.3d 1562, 1569 (Fed.Cir.1997); see also Glaxo Group Ltd. v. Apotex, Inc., 376 F.3d 1339, 1349 (Fed.Cir.2004) (citing Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 678, 110 S.Ct. 2683, 110 L.Ed.2d 605 (1990)). . Novopharm, 110 F.3d at 1569. . Id. (emphasis in original) (quoting 21 U.S.C. § 355(j)(2)(A)(vii)(IV)). . Id. (citing 21 U.S.C. § 355(j)(4)(B)(iii)(II) and 35 U.S.C. § 271(e)(4)(A)). . Id. . First Am. Compl. ¶ 13; Marlowe Decl. # 1 Ex. C. . Marlowe Decl. # 1 Ex. C. . Id. . First Am. Answer to First Am. Compl. ¶ 33. . Marlowe Decl. # 1 Ex. D. . Marlowe Decl. # 1 Ex. B. . Mem. in Supp. of Cobalt Pharms., Inc.’s Mot. for Summ. J. as to its Non-Infringement of the '856 Patent at 5-6; Marlowe Decl. # 1 Exs. B, H. . See Decl. of Matthew C. Marlowe in Supp. of Cobalt Pharms., Inc.’s Mot. for Leave to File a Supplemental Br. on Non-Infringement of the '856 Patent (\"Marlowe Decl. # 3”) Ex. A at CA2347. . First Am. Compl. ¶ 27. . First Am. Compl. ¶ 20. . Pis.’ Opp’n to Cobalt Pharms., Inc.’s Mot. to Strike Pis.’ Claim of Willful Infringement at 7. . Cobalt has moved to strike the allegation of willfulness from the amended complaint pursuant to Fed.R.Civ.P. 12(f). In the alternative, Cobalt has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). This court will consider Cobalt’s alternative request and analyze the issue under the Rule 12(c) standard. . Furtick v. Medford Hous. Auth., 963 F.Supp. 64, 67 (D.Mass.1997) (citing Nedder v." }, { "docid": "2907524", "title": "", "text": "their 168-page second amended complaint. The Federal Rules call for courts to “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Justice would not be served by granting relators’ request to file a third amended complaint; rather, such a grant would prejudice the defendants and incen-tivize future unfair amendment tactics. Accordingly, relators’ request to file a third amended complaint is denied on the grounds of undue delay. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (noting that amendments may be denied on the basis of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment”); United States ex rel. D’Agostino v. EV3, Inc., 802 F.3d 188, 195 (1st Cir.2015) (noting that, even though the Rule 15 standard applied — instead of the Rule 16 good cause standard — to a relator’s request to amend a qui tarn complaint, “[l]et us be perfectly clear. We do not suggest that the district court will be compelled to grant the motion to amend on remand. After all, there are myriad reasons that might justify the deni al of a motion for leave to amend, including undue delay, repeated failure to cure deficiencies, or futility.” (citing Foman, 371 U.S. at 182, 83 S.Ct. 227)). “When ’considerable time has elapsed between the filing of the complaint and the motion to amend, the movant has [at the very least] the burden of showing some valid reason for his neglect and delay.’” In re Lombardo, 755 F.3d 1, 3 (1st Cir.2014) (internal quotation marks omitted) (quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983)). The First Circuit has “previously labeled as ’considerable time’ warranting explanation, periods of fourteen months, fifteen months, and seventeen months.” Id. (citations omitted) (citing Grant v. News Grp. Bos., Inc., 55 F.3d 1, 6 (1st Cir.1995) (fourteen months); Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49," }, { "docid": "2907525", "title": "", "text": "a qui tarn complaint, “[l]et us be perfectly clear. We do not suggest that the district court will be compelled to grant the motion to amend on remand. After all, there are myriad reasons that might justify the deni al of a motion for leave to amend, including undue delay, repeated failure to cure deficiencies, or futility.” (citing Foman, 371 U.S. at 182, 83 S.Ct. 227)). “When ’considerable time has elapsed between the filing of the complaint and the motion to amend, the movant has [at the very least] the burden of showing some valid reason for his neglect and delay.’” In re Lombardo, 755 F.3d 1, 3 (1st Cir.2014) (internal quotation marks omitted) (quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983)). The First Circuit has “previously labeled as ’considerable time’ warranting explanation, periods of fourteen months, fifteen months, and seventeen months.” Id. (citations omitted) (citing Grant v. News Grp. Bos., Inc., 55 F.3d 1, 6 (1st Cir.1995) (fourteen months); Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 51-52 (1st Cir.1998) (fifteen months); Stepanischen, 722 F.2d at 933 (sixteen months)). The First Circuit has “also held that in assessing whether delay is undue, a court will take account of what the movant ‘knew or should have known and what he did or should have done.’” Id. at 3-4 (quoting Invest Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d 57, 72 (1st Cir.2001)). Delays for periods as short as eleven months, four months, and less than three months have been found to constitute undue delay. See Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 19-20 (1st Cir.2013) (eleven-month delay); Villanueva v. United States, 662 F.3d 124, 127 (1st Cir.2011) (four-month delay); Kay v. N.H. Dem. Party, 821 F.2d 31, 34 (1st Cir.1987) (less than three-month delay). Here, the relators filed their original complaint in 2012, when they should have already been aware of the First Circuit’s Rule 9(b) pleading standard in FCA cases. Since that time, they have amended the complaint twice. At the very latest, they should have been aware of the SAC’s" }, { "docid": "12393145", "title": "", "text": "Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Interstate Litho Corp., 255 F.3d at 25; Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 51 (1st Cir.1998). We find no error in the district court’s decision to permit the amendment. In reviewing a district court’s decision on whether or not to grant an amendment, we routinely focus our analysis on the prejudice to the non-moving party. See, e.g., Interstate Litho Corp., 255 F.3d at 25-26 (“[Plaintiff] ... does not identify any prejudice-Indeed, [Plaintiffs] trial preparation on the merits issues could hardly have been much different....”); Hayes v. New Eng. Millwork Distribs., Inc., 602 F.2d 15, 19 (1st Cir.1979) (“[C]ourts may not deny an amendment solely because of delay and without consideration of the prejudice to the opposing party....”). Most often, this prejudice takes the form of additional, prolonged discovery and a ■ postponement of trial. See, e.g., Acostar- Mestre, 156 F.3d at 52 (“[T]he prejudice to Hilton resulting from a re-opening of discovery with additional costs, a significant postponement of trial, and a likely major alteration in trial strategy and tactics ... fully support the district court’s ruling [to deny a motion for leave to amend].”); Stepanischen v. Merchs. Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983) (“[T]he addition of new claims would likely have required additional discovery and caused further delay.”); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 896 (1st Cir.1979) (affirming denial of motion to amend where five years had passed since the complaint was filed, a memorandum opinion and judgment -had already been entered, and the defendants “would be prejudiced by the difficulty and expense required in locating essential witnesses for trial”). Here, Klunder fails to establish prejudice. Though he claims that “knowledge of the defense of statute of limitations would have impacted Plaintiffs discovery strategy,” he fails to explain how. To the contrary, the record suggests the opposite. At the time the motion to amend was filed, discovery was ongoing. Klunder had only taken two depositions, and subsequently took others, and thus had ample opportunity" }, { "docid": "7497038", "title": "", "text": "1997, or, at the earliest, the date of the stipulation (April 17,1997). We review denials of motions to amend pleadings for abuse of discretion. See Interstate Litho Corp. v. Brown, 255 F.3d 19, 25 (1st Cir.2001); see also Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 158 (1st Cir.2004) (“An error of law is, of course, always an abuse of discretion.”). Consent to file amended pleadings “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), unless the amendment would be futile or reward undue delay, see Steir v. Girl Scouts of the USA 383 F.3d 7, 12 (1st Cir.2004); Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.1994). In assessing futility, the district court must apply the standard which applies to motions to dismiss under Fed.R.Civ.P. 12(b)(6). See Glassmun v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996). The bar for a plaintiff tendering an amended complaint is higher after a motion for summary judgment has been filed, as the plaintiff must demonstrate “that the proposed amendments were supported by substantial and convincing evidence.” Gold, 30 F.3d at 253 (citation and internal quotation marks omitted); see also Girl Scouts, 383 F.3d at 12. We begin on common ground. Both sides agree that a six-month statute of limitations applies to “hybrid” actions, and that the clock started ticking when the prospective plaintiffs knew, or reasonably should have known, of the alleged wrongful acts. See Arriaga-Zayas v. Int’l Ladies’ Garment Workers’ Union, 835 F.2d 11, 13 (1st Cir.1987). The parties also agree, and we accept arguendo, that the running of the statute was tolled during the pendency of the motion for class certification. See generally Basch v. Ground Round, Inc., 139 F.3d 6, 10 (1st Cir.1998). Because the prospective plaintiffs did not move to amend the complaint until January 28, 1999, 30 days after the denial of class certification, the action is only timely if the case accrued fewer than five months before the filing of the original class action complaint on August 27, 1997. The prospective plaintiffs assert that the accrual date was no" }, { "docid": "21046314", "title": "", "text": "Invest Almaz’s counsel clearly indicated at the hearing that it wished to amend the pleadings if the magistrate judge thought it necessary. In addition, the magistrate judge himself framed his decision as a denial of Invest Almaz’s request for leave to amend. Invest Almaz’s appeal of the denial of leave to amend is therefore properly before us. We turn to the merits of Invest Almaz’s argument guided by the following principles. ‘While leave to amend shall be freely given when justice so requires ... the liberal amendment policy prescribed by Rule 15(a) \"does not mean that leave will be granted in all cases.” Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 51 (1st Cir.1998) (internal citations and quotation marks omitted). “Among the adequate reasons for denying leave to amend are ‘undue delay’ in filing the motion and ‘undue prejudice to the opposing party’ by virtue of allowance of the motion.” Id. (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Furthermore, “when considerable time has elapsed between the filing of the complaint and the motion to amend, the movant has the burden of showing some valid reason for his neglect and delay.” Acosta-Mestre, 156 F.3d at 52 (quoting Stepanischen v. Merchs. Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983)) (internal quotation marks omitted). We also note that, in reviewing a decision denying leave to amend, we accord significant deference to the decisionmaker below. Denial of leave to amend is reviewed only for abuse of discretion, and we will affirm the decision below “if any adequate reason for the denial is apparent on the record.” Acosta-Mestre, 156 F.3d at 51 (quoting Grant v. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir.1995)). We find that the magistrate judge’s refusal to allow amendment withstands Invest Almaz’s challenge. We concede that the magistrate judge’s finding of prejudice could have been accompanied by a clearer explanation of its grounds than was given. Nonetheless, we think the record adequate to sustain the magistrate judge’s conclusion. The fact that the theory underlying the affirmative fraud counts" }, { "docid": "23341172", "title": "", "text": "by the more demanding “good cause” standard of Fed.R.Civ.P. 16(b). O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-155 (1st Cir.2004). This standard focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent. Id. Where the motion to amend is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show “substantial and convincing evidence” to justify a belated attempt to amend a complaint. Gold, 30 F.3d at 253. Regardless of the context, the longer a plaintiff delays, the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend. Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 52-53 (1st Cir.1998). Particularly disfavored are motions to amend whose timing prejudices the opposing party by “requiring a re-opening of discovery with additional costs, a significant postponement of the trial, and a likely major alteration in trial tactics and strategy....” Id. at 52. We review the denial of a motion to amend under Rule 15(a) for an abuse of discretion, and we “defer to the district court if any adequate reason for the denial is apparent on the record.” Grant v. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir.1995). That the motion to amend by adding the Rehabilitation Act claim, if granted, would have prejudiced the Girl Scouts and Spar & Spindle by injecting a new theory of relief into the litigation, goes without saying. Title III of the ADA, the gravamen of the original amended complaint, permits only equitable relief, while the Rehabilitation Act has been judicially construed to permit the recovery of money damages. See Schultz v. Young Men’s Christian Ass’n of the United States, 139 F.3d 286, 290 (1st Cir.1998). In defending against the Steirs’ lawsuit, the Girl Scouts and Spar & Spindle made a tactical decision to forego any attempt to explore the basis and extent of Marika’s claim for compensatory damages." }, { "docid": "21841245", "title": "", "text": "re Lombardo, 755 F.3d 1, 3 (1st Cir.2014) (citing Foman, 371 U.S. at 182, 83 S.Ct. 227; Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 51-52 (1st Cir.1998)); accord Perez v. Hospital Damas, Inc., 769 F.3d 800, 802 (1st Cir.2014); Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 20 (1st Cir.2013) (“Appreciáble delay alone, in the absence of good reason for it, is enough to justify denying a motion for leave to amend.”). “When ‘considerable time has elapsed between the filing of the complaint ■ and the motion to amend, the movant has [at the very least] the burden of showing some valid reason for his neglect and delay.’ ” In re Lombardo, 755 F.3d at 3 (internal quotation marks omittéd) (quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983)). The First Circuit has “previously labeled as ‘considerable time warranting explanation, periods of fourteen months, fifteen months, and seventeen months.” Id. (citations omitted) (citing Grant v. News Grp. Bos., Inc., 55 F.3d 1, 6 (1st Cir.1995) (fourteen months), Acosta-Mestre, 156 F.3d at 52 (fifteen months); Stepanischen, 722 F.2d at 933 (sixteen months)). The First Circuit has “also held that in assessing whether delay is undue, a court will take account of what the movant ‘knew or should have known and what he did or should have done.’” Id. at 3-4 (quoting Invest Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d 57, 72 (1st Cir.2001)). Delays for periods as short as eleven months, four months, and less than three month have been found to constitute undue delay. See Calderón-Serra, 715 F.3d at 19-20 (eleven-month delay); Villanueva v. United States, 662 F.3d 124, 127 (1st Cir.2011) (four-month delay); Kay v. N.H. Dem. Party, 821 F.2d 31, 34 (1st Cir.1987) (less than three-month delay). A “considerable” amount of time certainly passed here. Hagerty filed his initial compláint on August 8, 2012. He filed the present action on February 4, 2013. After Cyberonics filed a motion to dismiss, Hagerty amended the complaint on May 19, 2014. Cyberonics moved to dismiss the first amended complaint (actually, his third try" }, { "docid": "12393144", "title": "", "text": "We review the district court’s decision to grant Appellees’ motion to amend its answer to include the statute of limitations defense for abuse of discretion. Interstate Litho Corp. v. Brown, 255 F.3d 19, 25 (1st Cir.2001). That decision “will be left untouched” so long as “ ‘the record evinces an arguably adequate basis for the court’s decision.’ ” Juárez v. Select Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir.2013) (quoting Hatch v. Dep’t for Children, 274 F.3d 12, 19 (1st Cir.2001)). Rule 15 of the Federal Rules of Civil Procedure governs amendments to pleadings, and it instructs courts to “freely give leave” to amend. Fed.R.Civ.P. 15(a)(2). As the Supreme Court explained, In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies ]oy amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Interstate Litho Corp., 255 F.3d at 25; Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 51 (1st Cir.1998). We find no error in the district court’s decision to permit the amendment. In reviewing a district court’s decision on whether or not to grant an amendment, we routinely focus our analysis on the prejudice to the non-moving party. See, e.g., Interstate Litho Corp., 255 F.3d at 25-26 (“[Plaintiff] ... does not identify any prejudice-Indeed, [Plaintiffs] trial preparation on the merits issues could hardly have been much different....”); Hayes v. New Eng. Millwork Distribs., Inc., 602 F.2d 15, 19 (1st Cir.1979) (“[C]ourts may not deny an amendment solely because of delay and without consideration of the prejudice to the opposing party....”). Most often, this prejudice takes the form of additional, prolonged discovery and a ■ postponement of trial. See, e.g., Acostar- Mestre, 156 F.3d at 52 (“[T]he prejudice to Hilton resulting from a re-opening of discovery with additional costs," }, { "docid": "21841244", "title": "", "text": "amend should .be denied on the basis of futility and undue delay. 1. Futility The Court ruled in March 2015 that 30 of the 33 counts in Hagerty’s first amended complaint did not meet the heightened pleading standard applied to FCA claims and its state-law analogues. Hagerty’s proposed second amended complaint seeks to add additional allegations to cure the deficiencies in the first amended complaint outlined by the Court. • The second amended complaint, like the first, lacks allegations of a single specific false claim made to the government. It is also questionable whether it sufficiently alleges that any specific medical procedure, or any specific purchase of a battery or VNS system, was actually unnecessary. In any event, the Court need not reach the issue of futility because the motion will be denied on the independent basis of undue delay. 2. Undue Delay In the First Circuit, it is well-established that “undue delay in moving to amend, even standing alone, may be ... an adequate reason [to deny a motion for leave, to amend].” In re Lombardo, 755 F.3d 1, 3 (1st Cir.2014) (citing Foman, 371 U.S. at 182, 83 S.Ct. 227; Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 51-52 (1st Cir.1998)); accord Perez v. Hospital Damas, Inc., 769 F.3d 800, 802 (1st Cir.2014); Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 20 (1st Cir.2013) (“Appreciáble delay alone, in the absence of good reason for it, is enough to justify denying a motion for leave to amend.”). “When ‘considerable time has elapsed between the filing of the complaint ■ and the motion to amend, the movant has [at the very least] the burden of showing some valid reason for his neglect and delay.’ ” In re Lombardo, 755 F.3d at 3 (internal quotation marks omittéd) (quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.1983)). The First Circuit has “previously labeled as ‘considerable time warranting explanation, periods of fourteen months, fifteen months, and seventeen months.” Id. (citations omitted) (citing Grant v. News Grp. Bos., Inc., 55 F.3d 1, 6 (1st Cir.1995) (fourteen months), Acosta-Mestre," }, { "docid": "22569894", "title": "", "text": "were entitled to wait and see if then-amended complaint was rejected by the district court before being put to the costs of filing a second amended complaint. They claim this would promote efficiency in the judicial system. Plaintiffs have it exactly backwards — their methodology would lead to delays, inefficiencies, and wasted work. The plaintiffs do not get leisurely repeated bites at the apple, forcing a district judge to decide whether each successive complaint was adequate under the PSLRA. Plaintiffs may not, having the needed information, deliberately wait in the wings for a year and a half with another amendment to a complaint should the court hold the first amended complaint was insufficient. Such an approach would impose unnecessary costs and inefficiencies on both the courts and party opponents. This court expressly disapproved a similar tactic in James, and we do so again. See id. at 78 (“Such a practice would dramatically undermine the ordinary rules governing the finality of judicial decisions, and should not be sanctioned in the absence of compelling circumstances.” (citing 6 Wright & Miller, Federal Practice and Procedure § 1489 (1971))). It is black-letter law that “[Regardless of the context, the longer a plaintiff delays, the more likely [a] motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir.2004) (citing Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 52-53 (1st Cir.1998)); see also Palmer v. Champion Mortgage, 465 F.3d 24, 30-31 (1st Cir.2006) (approving rejection of request for leave to amend made fifteen months after commencement of action on the basis of previously available information). There was no error. IV. A. PSLRA Pleading Requirements We evaluate de novo whether the first amended complaint meets the pleading requirements imposed by the PSLRA. Aldridge, 284 F.3d at 78. We may affirm “on any independently sufficient ground.” Ezra Charitable Trust v. Tyco Int’l, Inc., 466 F.3d 1, 6 (1st Cir.2006) (quoting Badillo-Santiago" }, { "docid": "7497037", "title": "", "text": "1997. The court held that the motion to amend would be futile for 94 of the 96 prospective plaintiffs, since their claims were time-barred. On appeal, the prospective plaintiffs argue that the accrual date was later than that found by the district court. Pointing out that motions to amend are to be “freely granted,” the prospective plaintiffs contend that their motion should have been assessed under the liberal Fed.R.Civ.P. 12(b)(6) standard based entirely on the “four corners” of the tendered complaint, and that the district court erred in considering outside evidentiary materials without notice that it was going to do so. Building on this position, the prospective plaintiffs further contend that the court was bound by then- allegation that the layoffs did not take place until April 1,1997. Alternatively, the prospective plaintiffs posit that they did not know of their injury until they learned that defendants had actually violated the CBA’s seniority provisions, and the evidence suggests that did not occur until the prospective plaintiff? eventually received a copy of the operative CBA in July 1997, or, at the earliest, the date of the stipulation (April 17,1997). We review denials of motions to amend pleadings for abuse of discretion. See Interstate Litho Corp. v. Brown, 255 F.3d 19, 25 (1st Cir.2001); see also Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 158 (1st Cir.2004) (“An error of law is, of course, always an abuse of discretion.”). Consent to file amended pleadings “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), unless the amendment would be futile or reward undue delay, see Steir v. Girl Scouts of the USA 383 F.3d 7, 12 (1st Cir.2004); Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.1994). In assessing futility, the district court must apply the standard which applies to motions to dismiss under Fed.R.Civ.P. 12(b)(6). See Glassmun v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996). The bar for a plaintiff tendering an amended complaint is higher after a motion for summary judgment has been filed, as the plaintiff must demonstrate “that the proposed amendments were" }, { "docid": "14056401", "title": "", "text": "413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). . Pis.' Opp'n, 12 [# 109] (quoting Pis.’ Mot. Leave File Am. Compl., Ex. A ¶ 119 [# 94]). . Pis.' Opp’n, 12 [# 109] (citing Pis.' Mot. Leave File Am. Compl., Ex. A ¶ 120 [# 94]). . Pis.' Opp’n, 12 [# 109] (citing Pis.' Mot. Leave File Am. Compl., Ex. A ¶ 123 [# 94]); see also id. at 12-13 (”[T]hese as-applied claims were included in the original complaint.” (citing Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief ¶¶ 88, 89, 91 [#1])). . Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief, 16 [# I], . McCullen I, 573 F.Supp.2d at 417; see McCullen II, 571 F.3d at 183-84. . Pis.' Opp’n, 15 [# 109], . McCullen I, 573 F.Supp.2d at 417 (quoting Bl(a)ck Tea Soc’y v. City of Bos., 378 F.3d 8, 12 (1st Cir.2004)). . McCullen II, 571 F.3d at 184 (citing Bl(a)ck Tea Soc’y, 378 F.3d at 12). . Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief, 17 [# 1]. . McCullen I, 573 F.Supp.2d at 418. . Id. (quoting Knights of Columbus v. Town of Lexington, 272 F.3d 25, 35 (1st Cir.2001)). . Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief, 18, 21 [# 1], . McGuire II, 386 F.3d at 64. . See id. at 65 (\"[Tjhere is no evidence that the police have enforced this statute in anything other than an evenhanded way....”). . Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief ¶ 26 [# 1]. . McGuire II, 386 F.3d at 65. Plaintiffs’ argument that McGuire II is inapplicable is unavailing. See supra notes 28-32 and accompanying text. Additionally, Plaintiffs argue that their allegations concerning Defendant's interpretation of the Act are sufficient to constitute as-applied claims under Counts Five and Eight. See Pis.’ Opp'n, 18 [# 109]. As explained below, however, Plaintiffs are not permitted to amend their Complaint to include such an argument. See infra Part C. . See Pis.’ Opp’n, 17-18 [# 109], . Compl. Civil Rights Violations, Declaratory J., & Injunctive Relief," }, { "docid": "22569895", "title": "", "text": "Wright & Miller, Federal Practice and Procedure § 1489 (1971))). It is black-letter law that “[Regardless of the context, the longer a plaintiff delays, the more likely [a] motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir.2004) (citing Acosta-Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 52-53 (1st Cir.1998)); see also Palmer v. Champion Mortgage, 465 F.3d 24, 30-31 (1st Cir.2006) (approving rejection of request for leave to amend made fifteen months after commencement of action on the basis of previously available information). There was no error. IV. A. PSLRA Pleading Requirements We evaluate de novo whether the first amended complaint meets the pleading requirements imposed by the PSLRA. Aldridge, 284 F.3d at 78. We may affirm “on any independently sufficient ground.” Ezra Charitable Trust v. Tyco Int’l, Inc., 466 F.3d 1, 6 (1st Cir.2006) (quoting Badillo-Santiago v. Naveirar-Merly, 378 F.3d 1, 5 (1st Cir.2004)) (internal quotation marks omitted). Under the PSLRA, as with any motion to dismiss under Rule 12(b)(6), we accept well-pleaded factual allegations in the complaint as true and view all reasonable inferences in the plaintiffs’ favor. Aldridge, 284 F.3d at 78; Greebel, 194 F.3d at 195-96; see also Tellabs, 127 S.Ct. at 2509. The Supreme Court has recently altered the Rule 12(b)(6) standard in a manner which gives it more heft. In order to survive a motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1967-69, 167 L.Ed.2d 929 (2007); Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007). The Court’s formulation revised language from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts” entitling him to relief. Id. at 45-46, 78 S.Ct. 99. Of course, plaintiffs" } ]

[ { "docid": "22825703", "title": "", "text": "Mr. Justice Peckiiam, after stating the case, delivered the opinion of the court. The court below had jurisdiction to issue the writ and to decide the questions which were argued before it. Ex parte Royall, 117 U. S. 241; Whitten v. Tomlinson, 160 U. S. 231. In the latter case most of the prior authorities are mentioned. From these cases it clearly appears, as the settled and proper procedure, that while Circuit Courts of the United States have jurisdiction, under the circumstances set forth in the foregoing-statement, to issue the writ of habeas corpus, yet those courts ought not to exercise that jurisdiction by the discharge of a prisoner unless in cases of peculiar urgency, and that instead of discharging they will leave the prisoner to be dealt with by the courts of the State; that after a.final determination of the case by the state court, the Federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. The reason for this course is apparent. It'is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by. the decision of a singlo judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally dis.charged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued.1 Such are■ the cases In re Loney, 134 U. S. 372, and In re Neagle, 135 U. S. 1, but. the reasons for the interference of the Federal court in each of those cases vTere extraordinary, and .presented what this court regarded as such exceptional facts as to justify the • interference of the Federal tribunal. Unless this case be of such an exceptional nature, we ought not to encourage the interference of the Federal, court below with the regular course of" } ]

[ { "docid": "11024439", "title": "", "text": "Ex parte Royall, 117 U.S. 241, 250-253, 6 S.Ct. 734, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; [People of State of] New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis v. Burke, 179 U.S. 399, 401-403, 21 S.Ct. 210, 45 L.Ed. 249; Riggins v. United States, 199 U.S. 547, 549, 26 S.Ct. 147, 50 L.Ed. 303; Drury v. Lewis, 200 U.S. 1, 6, 26 S.Ct. 229, 50 L.Ed. 343; Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 56 L.Ed. 1147; Johnson v. Hoy, 227 U.S. 245, 247, 33 S.Ct. 240, 57 L.Ed. 497.” Relying upon this case, which has been consistently followed, the District Court denied the petition for the writ. We find no valid reason for disturbing the order, which appears to us to have been made in the exercise of sound judicial discretion. It is clear enough that appellant is held in custody by reason of his conviction in a court having jurisdiction over his person and plenary jurisdiction of the offense with which he was charged. In such a case he is not entitled to relief on habeas corpus. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969. After the Mangum case and Craig v. Hecht, 263 U.S. 255, 277, 44 S.Ct. 103, 68 L.Ed. 293, it would serve no worth-while purpose to cite additional authority to the effect that habeas corpus cannot be utilized as a writ of error. See also Woolsey v. Best, Warden, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3. The only allegation in the petition that would cause serious question as to the soundness of the court’s discretion in denying the writ is that the prosecuting" }, { "docid": "15747790", "title": "", "text": "set by the trial court be reinstated. On April 15,1980, the district court issued an opinion granting the writ and ordering the dismissal of the case against petitioner and his release from custody. The state appealed to this court. We affirm in part and reverse in part. I. A. We consider first whether the speedy trial claim may be entertained prior to a trial on the indictment brought by the state against Atkins. A body of case law has developed holding that although § 2241 establishes jurisdiction in the federal courts to consider pretrial habeas corpus petitions, the courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state courts or by other state procedures available to the petitioner. See, e. g., Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Fay v. Noia, 372 U.S. 391, 417-20, 83 S.Ct. 822, 837-838, 9 L.Ed.2d 837 (1963); Braden, supra; Moore v. DeYoung, supra; Brown v. Estelle, 530 F.2d 1280 (5th Cir. 1976); United States ex rel. Scranton v. New York, 532 F.2d 292 (2d Cir. 1976). Abstention from the exercise of the habeas corpus jurisdiction is justified by the doctrine of comity, a recognition of the concurrent jurisdiction created by our federal system of government in the separate state and national sovereignties. Intrusion into state proceedings already underway is warranted only in extraordinary circumstances. Thus the doctrine of exhaustion of state remedies has developed to protect the state courts’ opportunity to confront initially and resolve constitutional issues arising within their jurisdictions and to limit federal judicial interference in state adjudicatory processes. This argument is especially forceful in a situation involving a speedy trial claim, because the drastic nature of the relief usually granted — dismissal of the case, Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) — could not be more disruptive of pending state actions. The general argument against consideration of speedy trial habeas corpus petitions prior to exhaustion of state remedies is" }, { "docid": "12945465", "title": "", "text": "true with respect to both issues of law and fact. Henry v. Henkel, 235 U.S. 219, 229, 35 S.Ct. 54, 59 L.Ed. 203; Berkoff v. Humphrey, supra, 8 Cir., 159 F.2d at page 7; Maye v. Pescor, 8 Cir., 162 F.2d 641. In Bowen v. Johnston, 306 U.S. 19, 26, 27/ 59 S.Ct. 442, 446, 83 L.Ed. 455, Mr. Chief Justice Hughes said: “It must never be forgotten that the writ of habeas corpus is the precious safeguard' of personal liberty and there is no higher duty than to maintain it unimpaired. Ex parte Lange, supra [18 Wall. 163, 178, 21 L.Ed. 872J. The rule requiring resort to appellate procedure when -the trial court has determined its own jurisdiction of an offense is not a rule denying the power to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one defining power but one which relates to the appropriate exercise of power. It has special application where there are essential questions of fact determinable by the trial court. Rodman v. Pothier, supra [264 U.S. 399, 44 S.Ct. 360, 68 L.Ed. 759]. It is applicable also to the determination in ordinary cases of disputed matters of law whether they relate to the sufficiency of the indictment or to the validity of the statute on which the charge is based. Id.; Glasgow v. Moyer, supra [225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147]; Henry v. Henkel, supra [235 U.S. 219, 35 S.Ct. 54, 59 L.Ed. 203], But it is equally true that the rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” It was unquestionably a function of the court which tried and sentenced the petitioner to determine whether he was sane or insane. That court has all of the files and records in petitioner’s case, which will demonstrate to a certainty what issues were tried and determined. If Judge Rice inadvertently failed to consider the question of petitioner’s mental" }, { "docid": "22549212", "title": "", "text": "S. 179; 182. It is, indeed, settled by repeated decisions of this court that where it is made to appear to a court of the United States that an applicant for habeas corpus is in the custody of a state officer in the ordinary co.urse of a-crimmaT prosecution, -under a law of the State not in itself repugnant to the Federal Constitution, the writ, in the absence of very special circumstances, ought not to be issued until the state prosecution has reached its conclusion, and not even then until the Federal questions arising upon the record have been brought before this court upon writ of error. Ex parte Royall, 117 U. S. 241, 251; In re Frederich, Petitioner, 149 U. S. 70, 77; Whitten v. Tomlinson, 160 U. S. 231, 242; Baker v. Grice, 169 U. S. 284, 291; Tinsley v. Anderson, 171 U. S; 101, 105; Markuson v. Boucher, 175 U. S. 184; Urquhart v. Brown, 205 U. S. 179. And see Henry v. Henkel, 235 U. S. 219, 228. Such cases as In re Loney, 134 U. S. 372, 376; and In re Neagle, 135 U. S. 1; are recognized as exceptional. It follows as a logical consequence that where, as here, a criminal prosecution has proceeded through all the courts of the State, including the appellate as well as the trial court, the result' of the appellate review cannot be ignored when afterwards the prisoner applies for his release on the ground of a deprivation of Federal rights sufficient to oust the State of its jurisdiction to proceed to judgment and execution against him. This is not a mere matter of comity, as seems to be supposed.. The rule stands upon a much higher plane, for it arises out of the very nature and ground of the inquiry into the proceedings of the state tribunals, and touches closely upon the relations between the state and the Federal governments. As was declared by this court in Ex parte Royall, 117 U. S. 241, 252 — applying in a habeas corpus case what was said in Covell v. Heyman," }, { "docid": "3125639", "title": "", "text": "any event. It conclusively appears from Hawk’s petition that he is confined by the State of Nebraska in the State Penitentiary for a violation of the laws of the State and under a judgment entered and a commitment issued by a court of the State. This is not one of those “rare cases where exceptional circumstances of peculiar urgency are shown to exist,” in which a federal court may, in the exercise of a sound discretion, issue a writ of habeas corpus on the application of one in the custody of a state, and thus interfere with the orderly administration by the state of its criminal laws. In United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138, the Supreme Court of the United States said: “The rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person asserting that he is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U.S. 241, 250-253, 6 S.Ct. 734, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; [People of State of] New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis v. Burke, 179 U.S. 399," }, { "docid": "3125640", "title": "", "text": "is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U.S. 241, 250-253, 6 S.Ct. 734, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; [People of State of] New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis v. Burke, 179 U.S. 399, 401-403, 21 S.Ct. 210, 45 L.Ed. 249; Riggins v. United States, 199 U.S. 547, 549, 26 S.Ct. 147, 50 L.Ed. 303; Drury v. Lewis, 200 U.S. 1, 6, 26 S.Ct. 229, 50 L.Ed. 343; Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 56 L.Ed. 1147; Johnson v. Hoy, 227 U.S. 245, 247, 33 S.Ct. 240, 57 L.Ed. 497.” Moreover, it does not appear that Hawk has, as yet, exhausted the judicial remedies afforded by the State. In Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791, 98 A.L.R. 406, the Supreme Court said: “We do not find that petitioner has applied to the state court for a writ of habeas corpus upon the grounds stated in his petition here. That corrective judicial process has not been invoked, and it is not shown to be unavailable. Despite the many proceedings taken on behalf of the petitioner, an application for the prerogative writ now asserted to be peculiarly suited to the circumstances disclosed by his petition has not been made" }, { "docid": "21629741", "title": "", "text": "parte Webb, 32 S. Ct. 769, 225 U. S. 663, 674, 56 L. .Ed. 1248; Hogan v. O’Neill, 41 S. Ct. 222, 255 U. S. 52, 55, 65 L. Ed. 497. The jurisdiction of the federal courts to discharge a prisoner held for violation of a state statute is discretionary. Ex parte Royall, 6 S. Ct. 734, 117 U. S. 241, 253, 29 L. Ed. 868. The jurisdiction is one of extreme delicacy, to be exercised sparingly, and only in circumstances of peculiar urgency. Whitten v. Tomlinson, 16 S. Ct. 297, 160 U. S. 231, 242, 40 L. Ed. 406; Baker v. Grice, 18 S. Ct. 323, 169 U. S. 284, 290, 42 L. Ed. 748; Drury v. Lewis, 26 S. Ct. 229, 200 U. S. 1, 50 L. Ed. 343; Urquhart v. Brown, 27 S. Ct. 459, 205 U. S. 179, 182, 51 L. Ed. 760. Appellant’s ultimate contention is that the information does not state facts sufficient to constitute a crime, under section 476 of the Penal Code. This court has held that this contention is unavailable on habeas corpus. Erickson v. Hodges, 179 F. 177, 180, 181, 102 C. C. A. 443; Bechtold v. U. S. (C. C. A.) 276 F. 816. The decisions of the Supreme Court are to the same effect. Glasgow v. Moyer, 32 S. Ct. 753, 225 U. S. 420, 428, 429, 56 L. Ed. 1147; Henry v. Henkel, 35 S. Ct. 54, 235 U. S. 219, 59 L. Ed. 203; Knewel v. Egan, 45 S. Ct. 522, 268 U. S. 442, 446, 69 L. Ed. 1036. The order is affirmed." }, { "docid": "15747789", "title": "", "text": "a speedy trial had been denied, or in the alternative to release him on bail pending trial. The court denied the motion to dismiss, but, finding that circumstances had changed since the state Court of Appeals cancelled bond in February, it ordered his release on a $50,000 bond. This was appealed by the state in an emergency fashion, and on September 12, 1979, the Court of Appeals again cancelled the bond and remanded Atkins to jail. Its decision stated simply, It is ... ordered that the order of the trial judge setting bond be, and is hereby, set aside and the bond cancelled. Defendant is ordered remanded to the custody of the Wayne County Sheriff, pursuant to this court’s order of February 9, 1979. Atkins’ request to appeal was denied by the state Supreme Court. He then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, on November 19, 1979, requesting that the district court order either that the case be dismissed or that trial commence immediately or that the bond set by the trial court be reinstated. On April 15,1980, the district court issued an opinion granting the writ and ordering the dismissal of the case against petitioner and his release from custody. The state appealed to this court. We affirm in part and reverse in part. I. A. We consider first whether the speedy trial claim may be entertained prior to a trial on the indictment brought by the state against Atkins. A body of case law has developed holding that although § 2241 establishes jurisdiction in the federal courts to consider pretrial habeas corpus petitions, the courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state courts or by other state procedures available to the petitioner. See, e. g., Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Fay v. Noia, 372 U.S. 391, 417-20, 83 S.Ct. 822, 837-838, 9 L.Ed.2d 837 (1963); Braden, supra; Moore v. DeYoung, supra; Brown v." }, { "docid": "2123274", "title": "", "text": "S.Ct. 674, 27 L.Ed.2d 701 (1971), the practical effect of declaratory or injunctive relief would have been as in Younger and Samuels, the effective termination of state proceedings. Both Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971) (per curiam) and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971) (per curiam), were cases where criminal prosecutions were pending and in which the district court made no findings of irreparable harm. . 401 U.S. 77, 80, 91 S.Ct. 758, 27 L.Ed. 2d 696 (1971). . Although plaintiffs did originally request injunctive relief against the state’s proceeding on any juvenile petition, at oral argument counsel indicated that in his view such relief is barred by the Younger principle. See fn. 40, supra. . See Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971) (right to preliminary hearing for juveniles); Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969) (per curiam) (right to preliminary hearing for juveniles); Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971) (same for adults). . 446 F.2d 1343 (3d Cir. 1971). See Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971). . 446 F.2d at 1347. . Id. at 1349. . Id. . See Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed. 2d 257 (1972). . Although habeas corpus relief can, under some circumstances, be sought by one detained, see Henry v. Henkel, 235 U.S. 219, 228, 35 S.Ct. 54, 59 L.Ed. 203 (1914) (in “exceptional circumstances”); Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748 (1897); Ex Parte Royall, 117 U.S. 241, 252-253, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Reis v. U. S. Marshal, 192 F.Supp. 79 (E.D.Pa.1961); compare Commonwealth ex rel. Levine v. Fair, 394 Pa. 262, 146 A.2d 834 (1959) with Commonwealth ex rel. Bittner v. Price, 428 Pa. 5, 235 A.2d 357 (1967) (per curiam), habeas relief or an appeal on the issue of improper pretrial detention is generally unavailable once an indictment has been returned or a finding of guilt has been made. See, e. g." }, { "docid": "2123275", "title": "", "text": ". 446 F.2d 1343 (3d Cir. 1971). See Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971). . 446 F.2d at 1347. . Id. at 1349. . Id. . See Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed. 2d 257 (1972). . Although habeas corpus relief can, under some circumstances, be sought by one detained, see Henry v. Henkel, 235 U.S. 219, 228, 35 S.Ct. 54, 59 L.Ed. 203 (1914) (in “exceptional circumstances”); Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748 (1897); Ex Parte Royall, 117 U.S. 241, 252-253, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Reis v. U. S. Marshal, 192 F.Supp. 79 (E.D.Pa.1961); compare Commonwealth ex rel. Levine v. Fair, 394 Pa. 262, 146 A.2d 834 (1959) with Commonwealth ex rel. Bittner v. Price, 428 Pa. 5, 235 A.2d 357 (1967) (per curiam), habeas relief or an appeal on the issue of improper pretrial detention is generally unavailable once an indictment has been returned or a finding of guilt has been made. See, e. g. Rivera v. Government of Virgin Islands, 375 F.2d 988 (3d Cir. 1967); Grace v. United States, 375 F.2d 119 (9th Cir. 1967); Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965). See generally Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U.Pa.L.Rev. 793 (1965). At oral argument, counsel pointed out that the problem of obtaining state habeas relief might be compounded by the fact that one state judge would be required to review a decision by one of his brethren. . E. g., Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1972) (per curiam). Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). . Plaintiffs’ due process argument must rest, in part at least, on the premise that the Fourth Amendment’s bar against unreasonable searches and seizures" }, { "docid": "4710006", "title": "", "text": "full operation, and in harmony with what we suppose was the intention of Congress in the enactments in question, this eourt holds that where a person is in custody, undér process from a state court of original jurisdiction, for an alleged offense against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the circuit court has a discretion whether it will discharge him upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. When the state court shall have finally acted upon the ease, the circuit eourt has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the highest court .of the state, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the Constitution of the United States.” In Baker v. Grice, 169 U. S. 284, 290, 18 S. Ct. 323, 325, 42 L. Ed. 748, an appeal from the final order of the Circuit Court of the United States in habeas corpus (79 F. 627), it was said: “The court below had jurisdiction to issue the writ, and to decide the questions which were argued before it. Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868; Whitten v. Tomlinson, 160 U. S. 231, 16 S. Ct. 297, 40 L. Ed. 406. In the latter case most of the prior authorities are mentioned. Prom these eases it clearly appears, as the settled and proper procedure, that while circuit courts of the United States have jurisdiction, under the circumstances set forth in the foregoing statement, to issue the writ of habeas corpus, yet those courts ought not to exercise that jurisdiction by the discharge of a prisoner unless in cases of peculiar urgency, and that, instead of discharging, they will leave" }, { "docid": "861798", "title": "", "text": "dissent in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 503, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). For our purposes, it is sufficient to recognize that, although there is a distinction in the statutory language of §§ 2254 and 2241, there is no distinction insofar as the exhaustion requirement is concerned. As early as 1886, the Supreme Court, in a pre-trial context held that: “. . . where a person is in custody, under process from a State court of original jurisdiction, for an alleged offense against the laws of such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court has a discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted . . ..” Ex parte Royall, 117 U.S. 241, 252-53, 6 S.Ct. 734, 741, 29 L.Ed. 868 (1886). More recently, the pre-trial availability of ha-beas corpus has been affirmed in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). In Fay, the Court had occasion to explain its earlier decision in Ex parte Royall, supra, as follows: “ . . . The Court held [in Ex parte Royall, supra ] that even in such a case the federal courts had the power to discharge a state prisoner restrained in violation of the Federal Constitution, see 117 U.S., at 245, 250-251 [6 S.Ct., at 739—740], but that ordinarily the federal court should stay its hand on habeas pending completion of the state court proceedings. This qualification plainly stemmed from considerations of comity rather than power, and envisaged only the postponement, not the relinquishment, of federal habeas corpus jurisdiction, which had attached by reason of the allegedly unconstitutional detention and could not be ousted by what the state court might decide. As well stated in a later case: ‘ . . . While the Federal courts" }, { "docid": "23674883", "title": "", "text": "stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.” Habeas corpus was held a proper method of challenging the conviction. Bowen v. Johnston, 1939, 306 U.S. 19, 26-27, 59 S.Ct. 442, 446, 83 L.Ed. 455, is heavily relied upon by the appellant. There the petitioner alleged that the United States did not have jurisdiction over the locus of the crime and thus had no jurisdiction to try him. Chief Justice Hughes wrote for the Court: “ * * * The rule requiring resort to appellate procedure when the trial court has determined its own jurisdiction of an offense is not a rule denying the power to issue a writ of habeas corpus when it appears that nevertheless the trial court was without jurisdiction. The rule is not one defining power but one which relates to the appropriate exercise of power. It has special application where there are essential questions of fact determinable by the trial court. Rodman v. Pothier, supra [264 U.S. 399, 44 S.Ct. 360, 68 L.Ed. 759]. It is applicable also to the determination in ordinary cases of disputed matters of law whether they relate to the sufficiency of the indictment or to the validity of the statute on which the charge is based, Id.; Glasgow v. Moyer, supra [225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147]; Henry v. Henkel, supra [235 U.S. 219, 35 S.Ct. 54, 59 L.Ed. 203]. But it is equally true that the rule is not so- inflexible that it may not -yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” The exceptional circumstance was “uncertainty and confusion with respect to the question whether offenses within the Chickamauga and Chattanooga National Park are triable in the state or federal courts.” The statement of the Court principally relied on by appellant is as follows: “ * * But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the" }, { "docid": "22549211", "title": "", "text": "trial of offenses against its criminal laws, and to define their several jurisdictions and authority as between themselves. And the question whether a State is depriving a prisoner of his liberty without due process of law, where the offense for which he is prosecuted is based upon a law that does no violence to the Federal Constitution, cannot ordinarily be determined, with, fairness to the State, until the conclusion of the course of justice in its courts. Virginia v. Rives, 100 U. S. 313, 318; Civil Rights Cases, 109 U. S. 3, 11; McKane v. Durston, 153 U. S. 684, 687; Dreyer v. Illinois, 187 U. S. 71, 83-84; Reetz v. Michigan, 188 U. S. 505, 507; Carfer v. Caldwell, 200 U. S. 293, 297; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 107; In re Frederich, Petitioner, 149 U. S. 70, 75; Whitten v. Tomlinson, 160 U. S. 231, 242; Baker v. Grice, 169 U. S. 284, 291; Minnesota v. Brundage, 180 U. S. 499, 503, Urquhart v. Brown, 205 U. S. 179; 182. It is, indeed, settled by repeated decisions of this court that where it is made to appear to a court of the United States that an applicant for habeas corpus is in the custody of a state officer in the ordinary co.urse of a-crimmaT prosecution, -under a law of the State not in itself repugnant to the Federal Constitution, the writ, in the absence of very special circumstances, ought not to be issued until the state prosecution has reached its conclusion, and not even then until the Federal questions arising upon the record have been brought before this court upon writ of error. Ex parte Royall, 117 U. S. 241, 251; In re Frederich, Petitioner, 149 U. S. 70, 77; Whitten v. Tomlinson, 160 U. S. 231, 242; Baker v. Grice, 169 U. S. 284, 291; Tinsley v. Anderson, 171 U. S; 101, 105; Markuson v. Boucher, 175 U. S. 184; Urquhart v. Brown, 205 U. S. 179. And see Henry v. Henkel, 235 U. S. 219, 228. Such cases as In" }, { "docid": "11024438", "title": "", "text": "in prison; (10) that the Judge erred in consulting with the Department of Pardon and Paroles before deciding these various motions; that he also erred in corresponding with the Michigan Supreme Court while appellant’s application for leave to appeal was pending. In United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138, it was said: “The rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person asserting that he is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U.S. 241, 250-253, 6 S.Ct. 734, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; [People of State of] New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis v. Burke, 179 U.S. 399, 401-403, 21 S.Ct. 210, 45 L.Ed. 249; Riggins v. United States, 199 U.S. 547, 549, 26 S.Ct. 147, 50 L.Ed. 303; Drury v. Lewis, 200 U.S. 1, 6, 26 S.Ct. 229, 50 L.Ed. 343; Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 56 L.Ed. 1147; Johnson v. Hoy, 227 U.S. 245, 247, 33 S.Ct. 240, 57 L.Ed. 497.” Relying upon this case, which has been consistently followed, the District" }, { "docid": "21336708", "title": "", "text": "concedes there “the petitioner was in actual custody at the time the petition was filed.” It also cites five other cases which it states “are not in point.” Nevertheless, it concludes “the rulings [sic] of the Supreme Court” allow one on bail to seek the writ. The last of the five cases cited in support of its position is In re Grice, 79 F. 627 (C.C.1897). As noted in Sibray v. United States (185 F. 401 (3d Cir. 1911)), In re Grice was reversed by the Supreme Court in Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748 (1898). . “The admission to hail [in the District of Columbia] to answer the indictment in the district of Wyoming was upon his own request on advice of counsel. * * * [His] position was thereafter no better than if he had applied for the writ after he had given bail. It is well settled that under such circumstances a petitioner is not entitled to be discharged on habeas corpus. Respublica v. Arnold, 3 Yeates (Pa.) 263; Dodge’s Case, 0 Mart.,O.S. (La.) 569; State v. Buyck, 1 Brov. (S.C.) 400. Being no longer under actual restraint within the District of Columbia, he was not entitled to the writ of habeas corpus. Wales v. Whitney, 114 U.S. 564 [5 Sup.Ct. 1050, 29 L.Ed. 277].” 253 U.S. at 343, 40 S.Ct. at 539 (Emphasis added.) The Court also cites with approval Sibray v. United States, supra, note 7. . If that be so, then appellant has named as appellee (respondent below) the wrong party, and the appeal must be dismissed. Cf.: Morehead v. California, 9th Cir., 339 F.2d 170; Roseborough v. California, 322 F.2d 788 (9th Cir. 1963); Bohm v. Alaska, 320 F.2d 851 (9th Cir. 1963). . I. e., in a case where a taxicab driver was arrested for parking a taxicab in a rival’s stand, and the driver questioned the constitutionality of a municipal ordinance forbidding such conduct. . See State cases collected under 39 C.J.S. Habeas Corpus § 9b., p. 440, under the heading: “Habeas corpus will not" }, { "docid": "11237518", "title": "", "text": "the ultimate facts essential to be proven at the trial to convict the accused of the offense charged. Under the state practice, however, there is a limitation which prevents a state court from considering an essential constitutional question. The fact that the affiant had no personal knowledge of the matters set forth in the affidavit cannot be questioned by any proceedings in the state courts. Lee v. Van Pelt, 57 Fla. 94, 48 So. 632 (1909); State ex rel. Bernstein v. Buchanan, 172 So.2d 476 (Fla.App.1965); Buchanan v. State, 167 So.2d 43 (Fla.App.1964). And where a party is confined in jail under a commitment issued upon an affidavit charging an offense in positive terms, he may not challenge the affidavit as insufficient to show probable cause. Lee v. Van Pelt, supra; Buchanan v. State, supra. The prerequisite to relief by habeas corpus in a federal court that state remedies be exhausted has been satisfied in the present case. The petitioner is not required to pursue state remedies since the issue which he raises has been settled by the Florida Supreme Court adversely to his contentions. Reed v. Beto, 343 F.2d 723 (5th Cir. 1965) ; Hayes v. Boslow, 336 F.2d 31 (4th Cir. 1964) ; Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964). It is argued that the petitioner, having been released from arrest in the custody of his attorney, is no longer en titled to the benefit of the writ of habeas corpus, and this appears to be the general rule. Stallings v. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940 (1920); Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497 (1913); Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748 (1898). However, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Supreme Court pointed out that the habeas corpus jurisdictional statute implements the constitutional command that writs of habeas corpus be made available. While limiting its availability to those “in custody,” the statute does not attempt to mark the boundaries of “custody,” nor" }, { "docid": "23269146", "title": "", "text": "accordance with the rule, repeatedly laid down by this court, that the Circuit Courts of the United States, while they have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in custody under the authority of a State in violation of the Constitution, a law or a treaty of the United States, yet, except in cases of peculiar urgency, ought not to exercise that jurisdiction by a discharge of the person in advance of a final determination of his case in the courts of the State, and, even after such final determination, will leave him to his remedy to review it by writ of error from this court. Ex parte Royall, 117 U. S. 241; Ex parte Fonda, 117 U. S. 516; In re Frederick, 149 U. S. 70; Pepke v. Cronan, 155 U. S. 100; Bergemann v. Backer, 157 U. S. 655; Whitten v. Tomlinson, 160 U. S. 231; Baker v. Grice, 169 U. S. 284.” In Baker v. Grice, Mr. Justice Peckham said: “ Instead of discharging they [the Federal courts] will leave the prisoner to be dealt with by the courts of the State; that after a final determination of the case by the state court, the Federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. The reason for this course is apparent. It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State bé finally prevented.” The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a State in" }, { "docid": "951606", "title": "", "text": "liberty, whether perpetrated by the executive, legislative or judicial branches of the government, or the military. Traditionally, the writ has had a very wide usage in testing all kinds of lawless government actions. Its use as a post-conviction remedy for wrongs perpetrated during criminal trials is relatively recent. In fact, the statute allowing federal habeas corpus attack on state criminal convic tions was not even in existence prior to 1867. In Ex parte Royall, 117 U.S. 241, 65 S.Ct. 734, 29 L.Ed. 868 (1886), Justice Harlan recognized the power of the federal court to release a prisoner who had not undergone a state trial. Although relief was denied because of a failure to exhaust the processes of the state, the case reaffirms the traditional notion that the federal remedy in habeas corpus is available to vindicate constitutional rights of citizens illegally held in custody. The Supreme Court only last term reaffirmed this traditional use of the writ. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). In Braden the writ was used to enforce Kentucky’s affirmative obligation to provide the petitioner with a speedy trial. Although petitioner was in custody at the time of his petition, the physical custody was that of the State of Alabama, not Kentucky, the state which petitioner alleged was depriving him of his rights. Braden obtained a writ” against Kentucky officials before any trial in that state. The state also advances several arguments related to the timing of Fain’s resort to a federal forum. These can be loosely grouped under the term “exhaustion.” The exhaustion of state remedies requirement is based on Ex parte Royall, supra. Although in Royall, the decision to require exhaustion was left in the discretion of the district court, the requirement soon became known as a jurisdictional one. With respect to collateral attack on convictions in state court, the requirement was codified in 28 U.S.C. § 2254(b), but the requirement applies to all habeas corpus actions. The Court in Braden clearly explained the various foundations and rationales of the exhaustion requirement. 410" }, { "docid": "4710007", "title": "", "text": "of the Constitution of the United States.” In Baker v. Grice, 169 U. S. 284, 290, 18 S. Ct. 323, 325, 42 L. Ed. 748, an appeal from the final order of the Circuit Court of the United States in habeas corpus (79 F. 627), it was said: “The court below had jurisdiction to issue the writ, and to decide the questions which were argued before it. Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868; Whitten v. Tomlinson, 160 U. S. 231, 16 S. Ct. 297, 40 L. Ed. 406. In the latter case most of the prior authorities are mentioned. Prom these eases it clearly appears, as the settled and proper procedure, that while circuit courts of the United States have jurisdiction, under the circumstances set forth in the foregoing statement, to issue the writ of habeas corpus, yet those courts ought not to exercise that jurisdiction by the discharge of a prisoner unless in cases of peculiar urgency, and that, instead of discharging, they will leave the prisoner to be dealt with by the courts of the state; that after a final determination of the case by the state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this court.” Such also was in Whitten v. Tomlinson, 160 U. S. 231, 16 S. Ct. 297, 301, 40 L. Ed. 406, where it was said: “By the existing statutes, this court and the circuit and district courts, and any justice or judge thereof, have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any prisoner in jail who ‘is in custody in violation of the Constitution or of a law or treaty of the United States’; and ‘the court or justice or judge, to whom the application is made, shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto’; and ‘shall proceed in a summary way to determine the" } ]

[ { "docid": "15459462", "title": "", "text": "robbery charged in Count 1, the district court sentenced Hines to 300-months’ imprisonment, to be served consecutively with the other sentences. As noted, Johnson rendered the residual clause of § 924(e) invalid. It spoke not at all about the validity of the definition of a crime of violence found in § 924(c)(3). Further, our Court has not held that Johnson invalidates § 924(c)(8)(B). However, even were we to extrapolate from the Johnson holding a conclusion that § 924(c)(3)(B) was also unconstitutional, it would not help Hines because his § 924(c) conviction on Count 2 was explicitly based on his companion Count 1 conviction for armed bank robbery, in violation of 18 U.S.C. § 2118(a) and (d). And a conviction for armed bank robbery clearly meets the requirement for an underlying felony offense, as set out in § 924(c)(3)(A), which requires the underlying offense to include as an element, “the use, attempted use, or threatened use of physical force against the person or property of another.” Here, Count 1 charged that Hines “by force, violence and intimidation, did take from the person or presence of [a teller] monies belong to [a federally-insured bank]” and that in doing so, Hines “did assault and put in jeopardy the life of [two individuals] by use of a dangerous weapon,” all in violation of 18 U.S.C. § 2113(a) and (d). These allegations in the indictment mimic the requirements of § 2113 (a) and (d). The statutory elements that these' allegations of the indictment repeat clearly meet § 924(e)(3)(A)’s requirement that the underlying felony offense must have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” This means that Hines’s conviction under § 924(c) would be valid even if Johnson renders the “crime of violence” definition in § 924(c)(3)(B) unconstitutional. Therefore, because Hines has failed to make .a prima facie showing that his proposed claim meets the statutory criteria, his application for leave to file a second or successive motion is hereby DENIED. . Hines incorrectly asserts that his § 924(c) conviction represents a violation" } ]

[ { "docid": "5930477", "title": "", "text": "of violence under the force clause. See United States v. Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017) (per curiam). To qualify as a crime of violence under the force clause, the element of “physical force” must involve “violent” physical force—“that is, force capable of causing physical pain or injury.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Although Johnson construed the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), the Johnson standard also applies to the similarly worded force clause of § 924(c)(3)(A). Gutierrez, 876 F.3d at 1256. The question, then, is whether bank robbery in violation of § 2113(a) meets the Johnson standard and thus qualifies as a crime of violence. We use the categorical approach to make that determination. See Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). Under this approach, the sole focus is on the elements of the relevant statutory offense, not on the facts underlying the convictions. Id. An offense is categorically a crime of violence only if the least violent form of the offense qualifies as a crime of violence. See Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). The federal bank robbery statute provides, in relevant part: Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association [shall be punished according to law]. 18 U.S.C. § 2113(a). Watson and Danielson argue that bank robbery “by force and violence, or by intimidation” does not constitute a crime of violence. They do not dispute that committing bank robbery “by force and violence” necessarily entails the use of violent physical force as Johnson requires. But they argue that the least violent form of the offense—bank robbery “by intimidation”— does not meet" }, { "docid": "12201964", "title": "", "text": "physical force”) (quotation marks omitted); Royal v. Tombone, 141 F.3d 596, 602 (5th Cir. 1998) (noting that a bank robbery conviction under § 2113(a) “includes as a necessary element the use of force and violence or intimidation” and referencing the § 924(c)(3)(A) use-of-force clause to conclude that a bank robbery conviction under § 2113(a) qualifies as a crime of violence); see also United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (citing the § 924(c)(3)(A) use-of-force clause and concluding that armed bank robbery qualifies as a crime of violence because § 2113(a) requires a taking by force and violence, or by intimidation). . In McNeal, the Fourth Circuit explained precisely why a conviction under § 2113(a) alone would still satisfy the § 924(c)(3)(A) use-of-force clause: A taking “by force and violence” entails the use of physical force. Likewise, a taking “by intimidation” involves the threat to use such force. As the Seventh Circuit explained ..., “[t]here is no space between ‘bank robbery’ and ‘crime of violence’ ” because “violence in the broad sense that includes a merely threatened use of force is an element of every bank robbery.” Put succinctly, ... [blank robbery under § 2113(a), “by force and violence,” requires the use of physical force. Bank robbery under § 2113(a), “by intimidation,” requires the threatened use of physical force. Either of those alternatives includes an element that is “the use, attempted use, or threatened use of physical force,” and thus bank robbery under § 2113(a) constitutes a crime of violence under the force clause of § 924(c)(3). McNeal, 818 F.3d at 153 (citations and alterations omitted). We agree with the Fourth Circuit’s reasoning and hold now that a bank robbery conviction under § 2113(a) by force and violence or by intimidation qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force clause. Therefore, Sams has not made a prima facie showing for relief as to his § 924(c) claim. III. CAREER OFFENDER GUIDELINES CLAIM Similarly, Sams has not made a showing that he is entitled to relief on his career-offender enhancement following Johnson. Section 4B1.1 of" }, { "docid": "21507357", "title": "", "text": "property of another may be used in the course of committing the offense. Id. § 924(c)(3). The former clause is referred to herein as the “use-of-force” clause and that later clause as the “§ 924(c)(3)(B) residual clause.” We recently recognized that it is an open question whether Johnson applies to the residual clause set out in 18 U.S.C. § 924(c)(3)(B). In re Pinder, 824 F.3d 977, 978-79, No. 16-12084, 2016 WL 3081954, at *2 (11th Cir. June 1, 2016). In Finder, this Court considered whether a companion charge of conspiracy to commit Hobbs Act robbery might qualify as a crime of violence under § 924(c). Id. at 979 n. 1, 2016 WL 3081954 at *2 n. 1. Because it was not clear whether conspiracy to commit Hobbs Act robbery qualified as a crime of violence under § 924(c), this Court concluded that the applicant had made a prima facie case that Johnson impacted the validity of his § 924(c) conviction. Id. In some cases, it has been clear that the § 924(c) companion conviction qualifies as a crime of violence under § 924(c). See, e.g., In re Saint Fleur, 824 F.3d 1337, 1340-41, No. 16-12299, 2016 WL 3190539, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re Hines, 824 F.3d 1334, 1336-37, No. 16-12454, 2016 WL 3189822, at *2 (11th Cir. June 8, 2016) (concluding that a com panion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, 826 F.3d 1301, 1304-05, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3 (11th Cir. June 24, 2016) (concluding that a companion conviction for aiding and abetting a Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual" }, { "docid": "12201962", "title": "", "text": "was based on his companion conviction for bank robbery, in violation of § 2113(a), which requires that the defendant take the property of a bank “by force and violence, or by intimidation.” See 18 U.S.C. § 2113(a). We have concluded that an armed bank robbery conviction pursuant to § 2113(a) and (d) qualifies as a crime of violence because it requires as an element, “the use, attempted use, or threatened use of physical force against the person or property of another,” as set out in § 924(c)(3)(A). Hines, 2016 WL 3189822, at *3, 824 F.3d at 1337. Additionally, as to the “by intimidation” language contained in § 2113(a), this Court has held that similar language still satisfies the § 924(c)(3)(A) use-of-force clause. See United States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 1994) (concluding, in the context of the federal carjacking statute, 18 U.S.C. § 2119, that “[tjaking or attempting to take by force and violence or by intimidation ... encompasses the use, attempted use, or threatened use of physical force.” (emphasis added) (quotation marks and alterations omitted)). While we have not directly held that a bank robbery conviction under only § 2113(a), rather than an armed bank robbery conviction under § 2113(a) and (d), qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force clause, the statutory language in § 2113(a) and our holdings in Hines and Moore make clear that such a conviction falls within the scope of the § 924(c)(3)(A) use-of-force clause. Indeed, other circuits have concluded that a bank robbery conviction under § 2113(a) qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force clause. See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (concluding that a bank robbery conviction under § 2113(a) qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause because (1) bank robbery “by force and violence” requires the use of physical force, (2) bank robbery “by intimidation” requires the threatened use of physical force, and (3) “[e]ither of those alternatives includes an element that is the use, attempted use, or threatened use of" }, { "docid": "15459461", "title": "", "text": "armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); Count 2 — -the use of a firearm in furtherance of the above crime of violence set out in Count 1, in violation of 18 U.S.C. § 924(c); Count 3 — possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; and Count 4 — felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). As to Counts 1 and 4 (the conviction for armed bank robbery and the conviction for being a felon in possession of a firearm), the district court sentenced Hines to 262-months’ imprisonment on each count, with the sentences to run concurrently to each other. As to Count 3 (possession of an unregistered short-barrel rifle), the court imposed a 120-month sentence, also to run concurrently to the sentences for Counts 1 and 4. As to Count 2 — the count of conviction in question here — under which Hines was convicted for his use of a firearm during the armed bank robbery charged in Count 1, the district court sentenced Hines to 300-months’ imprisonment, to be served consecutively with the other sentences. As noted, Johnson rendered the residual clause of § 924(e) invalid. It spoke not at all about the validity of the definition of a crime of violence found in § 924(c)(3). Further, our Court has not held that Johnson invalidates § 924(c)(8)(B). However, even were we to extrapolate from the Johnson holding a conclusion that § 924(c)(3)(B) was also unconstitutional, it would not help Hines because his § 924(c) conviction on Count 2 was explicitly based on his companion Count 1 conviction for armed bank robbery, in violation of 18 U.S.C. § 2118(a) and (d). And a conviction for armed bank robbery clearly meets the requirement for an underlying felony offense, as set out in § 924(c)(3)(A), which requires the underlying offense to include as an element, “the use, attempted use, or threatened use of physical force against the person or property of another.” Here, Count 1 charged that Hines “by force, violence and" }, { "docid": "21507358", "title": "", "text": "as a crime of violence under § 924(c). See, e.g., In re Saint Fleur, 824 F.3d 1337, 1340-41, No. 16-12299, 2016 WL 3190539, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re Hines, 824 F.3d 1334, 1336-37, No. 16-12454, 2016 WL 3189822, at *2 (11th Cir. June 8, 2016) (concluding that a com panion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, 826 F.3d 1301, 1304-05, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3 (11th Cir. June 24, 2016) (concluding that a companion conviction for aiding and abetting a Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause). In those cases, the § 924(c) companion conviction clearly qualified as a crime of violence. The applicant’s argument that Saint Fleur and Hines conflict with Pin-der fails because the companion conviction in Pinder was conspiracy to commit Hobbs Act robbery, while Saint Fleur and Hines involved different companion convictions, that is substantive Hobbs Act robbery and armed bank robbery under § 2113(a) and (d), respectively. Indeed this Court specifically distinguished Pinder in both Saint Fleur and Hines. Therefore, we reject the claim that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control Gordon’s case. Accordingly, Saint Fleur controls and we need not decide the § 924(c)(3)(B) residual clause issue in this particular case because even if Johnson’s rule about the ACCA residual clause applies to the § 924(c)(3)(B) residual clause, Gordon’s claim does not meet the statutory criteria for granting his § 2255(h) application. This Court has held that a companion Hobbs Act robbery conviction, such as Gordon’s, qualifies as a “crime of violence” under the use-of-force clause in §" }, { "docid": "22941404", "title": "", "text": "we agree with the government. 1. The crimes of violence underlying McNeal’s and Stoddard’s brandishing convictions were the armed bank robberies charged in Counts Two, Four, and Six of the indictment. Armed bank robbery under § 2113(d) has four elements: (1) the defendant took, or attempted to take, money belonging to, or in the custody; care, or possession of, a bank, credit union, or saving and loan association; (2) the money was taken “by force and violence, or by intimidation”; (3) the deposits of the institution were federally insured; and (4) in committing or attempting to commit the offense, the defendant assaulted any person, or put in jeopardy the life of any person, by the use of a dangerous weapon or device. See United States v. Davis, 437 F.3d 989, 993 (10th Cir.2006). The first three elements of armed bank robbery are drawn from § 2113(a) and define the lesser-included offense of bank robbery. The fourth element is drawn from § 2113(d). We focus on the second element: that the money was taken from the bank “by force and violence, or by intimidation.” See § 2113(a). ■ In assessing whether bank robbery qualifies as a crime of violence under the § 924(c)(3) force clause, we do not write on a blank slate. Twenty-five years ago in Adkins, our esteemed former colleague Judge Hall explained that “armed bank robbery is unquestionably a crime of violence, - because it ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.’ ” See 937 F.2d at 950 n. 2 (quoting 18 U.S.C. § 924(c)(3)(A)). We also ruled decades ago that a § 2113(a) bank robbery is a crime of violence under the force clause of Guidelines section 4B1.2, which is nearly identical to, the § 924(c)(3) force , clause. See United States v. Davis, 915 F.2d 132, 133 (4th Cir.1990); accord Johnson v. United States, 779 F.3d 125, 128-29 (2d Cir.2015); United States v. Wright, 957 F.2d 520, 521 (8th Cir.1992); United States v. Jones, 932 F.2d 624, 625 (7th Cir.1991); United States" }, { "docid": "12201963", "title": "", "text": "marks and alterations omitted)). While we have not directly held that a bank robbery conviction under only § 2113(a), rather than an armed bank robbery conviction under § 2113(a) and (d), qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force clause, the statutory language in § 2113(a) and our holdings in Hines and Moore make clear that such a conviction falls within the scope of the § 924(c)(3)(A) use-of-force clause. Indeed, other circuits have concluded that a bank robbery conviction under § 2113(a) qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force clause. See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (concluding that a bank robbery conviction under § 2113(a) qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause because (1) bank robbery “by force and violence” requires the use of physical force, (2) bank robbery “by intimidation” requires the threatened use of physical force, and (3) “[e]ither of those alternatives includes an element that is the use, attempted use, or threatened use of physical force”) (quotation marks omitted); Royal v. Tombone, 141 F.3d 596, 602 (5th Cir. 1998) (noting that a bank robbery conviction under § 2113(a) “includes as a necessary element the use of force and violence or intimidation” and referencing the § 924(c)(3)(A) use-of-force clause to conclude that a bank robbery conviction under § 2113(a) qualifies as a crime of violence); see also United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (citing the § 924(c)(3)(A) use-of-force clause and concluding that armed bank robbery qualifies as a crime of violence because § 2113(a) requires a taking by force and violence, or by intimidation). . In McNeal, the Fourth Circuit explained precisely why a conviction under § 2113(a) alone would still satisfy the § 924(c)(3)(A) use-of-force clause: A taking “by force and violence” entails the use of physical force. Likewise, a taking “by intimidation” involves the threat to use such force. As the Seventh Circuit explained ..., “[t]here is no space between ‘bank robbery’ and ‘crime of violence’ ” because “violence in the broad sense" }, { "docid": "7168408", "title": "", "text": "residual clause is now also invalid as a result of Johnson, we have assumed, as a threshold matter, that it might be. See In re Pinder, No. 16-12084, 824 F.3d 977, 978-79, 2016 WL 3081954, at *2 (11th Cir. June 1, 2016). But where it is clear that a § 924(c) conviction is based on an underlying offense that satisfies the statute’s force clause, we have said so and, in those cases, we have denied the application for a second or successive § 2255 motion. For example, we have held that armed bank robbery and Hobbs Act robbery clearly meet the requirements of § 924(c)(3)(A)’s force clause, and therefore have found no prima facie showing by an applicant who seeks to make a Johnson challenge as to those convictions in a successive motion. See In re Hines, No. 16-12454, 824 F.3d 1334, 1336-37, 2016 WL 3189822, at *2-3 (11th Cir. June 8, 2016) (explaining that armed bank robbery under 18 U.S.C. § 2113 is a crime of violence under § 924(e)(3)(A)’s force clause); In re Saint Fleur, No. 16-12299, 824 F.3d 1337, 1340-42, 2016 WL 3190639, at *3-4, manuscript order at 6-7 (11th Cir. June 8, 2016) (concluding that Hobbs Act robbery under 18 U.S.C. § 1951 is a crime of violence under § 924(c)(3)(A)’s force clause). When it is uncertain whether the underlying offense satisfies § 924(c)(3)’s force clause, we have granted the application. See In re Pinder, 824 F.3d at 1339-40, 2016 WL 3081954 at *2 (holding that an applicant made a prima facie case, for purposes of second or successive review, when seeking to challenge a conviction for conspiracy to commit Hobbs Act robbery based on an argument that such a conviction meets only the residual clause of § 924(c)). In sum, then, for purposes of this order, we will assume that we can extrapolate from the Johnson holding that § 924(c)’s residual clause is also unconstitutional. But as explained below, even making that assumption, we conclude that Smith has not made a prima facie case that Johnson renders his § 924(c) conviction invalid. A Carjacking Conviction" }, { "docid": "12201961", "title": "", "text": "1”), and one count of possessing, carrying, using, and brandishing of a firearm during the commission of a crime of violence, in violation of § 924(c)(1)(A)(ii) (“Count 3”). Count 1 of the indictment charged that Sams, “by force and violence and intimidation, took United States Currency from the person of another which was in the care, custody, control, management and possession of Northwest Georgia Bank, a bank insured by the Federal Deposit Insurance Corporation.” Count 3 of the indictment charged that Sams “possessed, carried, used, and brandished a firearm during the commission of a crime of violence, that is, the bank robbery alleged in Count One.” A jury convicted Sams of Counts 1 and 3. Sams was sentenced to a term of imprisonment of 240 months as to the § 2113(a) conviction in Count 1 and a consecutive term of 84 months as to the § 924(c) conviction in Count 3. Sams has not made a prima facie showing for relief under Johnson as to his conviction pursuant to § 924(c). Sams’s § 924(c) conviction was based on his companion conviction for bank robbery, in violation of § 2113(a), which requires that the defendant take the property of a bank “by force and violence, or by intimidation.” See 18 U.S.C. § 2113(a). We have concluded that an armed bank robbery conviction pursuant to § 2113(a) and (d) qualifies as a crime of violence because it requires as an element, “the use, attempted use, or threatened use of physical force against the person or property of another,” as set out in § 924(c)(3)(A). Hines, 2016 WL 3189822, at *3, 824 F.3d at 1337. Additionally, as to the “by intimidation” language contained in § 2113(a), this Court has held that similar language still satisfies the § 924(c)(3)(A) use-of-force clause. See United States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 1994) (concluding, in the context of the federal carjacking statute, 18 U.S.C. § 2119, that “[tjaking or attempting to take by force and violence or by intimidation ... encompasses the use, attempted use, or threatened use of physical force.” (emphasis added) (quotation" }, { "docid": "12201959", "title": "", "text": "companion charge of conspiracy to commit Hobbs Act robbery might qualify as a crime of violence under § 924(c). Id. at 1189-90, 2016 WL 3081954, at *2 n. 1. Because it was not clear whether conspiracy to commit Hobbs Act robbery qualified as a crime of violence under § 924(c), this Court concluded that the applicant had made a prima facie case that Johnson impacted the validity of his § 924(c) conviction. Id. In other cases, it has been clear that the § 924(c) companion conviction qualifies as a crime of violence under § 924(c). See, e.g., In re Saint Fleur, 824 F.3d 1337, 1340-41, No. 16-12299-J, 2016 WL 3190539, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re Hines, 824 F.3d 1334, 1337, No. 16-12454-F, 2016 WL 3189822, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, 826 F.3d 1301, 1304-06, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3-4 (11th Cir. June 24, 2016) (same for a companion conviction for aiding and abetting a Hobbs Act robbery); In re Smith, 829 F.3d 1276, 1279-80, Nos. 16-13661-J, 16-14000-J, 2016 WL 3895243, at *3 (11th Cir. July 18, 2016) (same for a companion conviction for carjacking, in violation of 18 U.S.C. § 2119); see also In re Gordon, 827 F.3d 1289, 1294, Nos. 16-13681-J, 16-13803-J, 2016 WL 3648472, at *4 (11th Cir. July 8, 2016) (concluding that Saint Fleur and Hines do not conflict with Pinder and rejecting the claim that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control the outcome of an applicant’s Johnson-based § 924(c) claim). Here, Sams was indicted on one count of bank robbery, in violation of § 2113(a) (“Count" }, { "docid": "854960", "title": "", "text": "necessarily include the use, attempted use, or threatened use of “violent force ... capable of causing physical pain or injury to another person,” under Johnson I. 559 U.S. at 140,130 S.Ct. 1265 (emphasis omitted). Accordingly, we hold that Winston’s conviction for Virginia common law robbery does not qualify as a violent felony under the ACCA. Our conclusion is not altered by the government’s argument that our decision in United States v. McNeal, 818 F.3d 141 (4th Cir. 2016), compels a different result in the present case. In McNeal we held that federal armed bank robbery under 18 U.S.C. § 2113(d) qualified as a crime of violence under 18 U.S.C. § 924(c)(3)(A), in part because the lesser included offense of bank robbery “by force and violence[ ] requires the use of physical force.” Id. at 153, 157. Our conclusion that federal armed bank robbery had as an element “the use, attempted use, or threatened use of physical force,” within the meaning of 18 U.S.C. § 924(c)(3)(A), is distinguishable from the present case because that decision involved this Court’s interpretation of a federal statute, rather than our application of a state court’s determination of a state offense. See McNeal, 818 F.3d at 154 (citing for support Presley, 52 F.3d at 69, but acknowledging that “a State is entitled to define its crimes as it sees fit”). Nor are we persuaded by the government’s suggestion that our decision in Gardner, holding that North Carolina common law robbery does not qualify as a violent felony, conflicts with McNeal. The state courts of Virginia and North Carolina are free to define common law robbery in their respective jurisdictions in a manner different from that employed by federal courts in construing a federal statute. Thus, even though our analysis in McNeal, Gardner, and the present case have required application of the force clause as defined by Johnson I to crimes involving robbery by force, by violence, by intimidation, or by fear, we have been called upon in these several cases to analyze distinct crimes under the differing precedent of the relevant jurisdictions. Accordingly, we hold that" }, { "docid": "22941403", "title": "", "text": "clause” and to subparagraph (B) as the “residual clause.” See, e.g., United States v. Fuertes, 805 F.3d 485, 498 (4th Cir.2015). In determining whether an offense is a crime of violence under either clause, we utilize the categorical approach, which focuses solely on the elements of the offense, rather than on the facts of the case. See id. McNeal and Stoddard contend that then- convictions on Counts Three, Five, and Seven for brandishing a firearm during a crime of violence must be vacated. They maintain, inter alia, that armed bank robbery under § 2113(d) is not a crime of violence within the meaning of the § 924(c)(3) force clause because it does not have as an element the use, attempted use, or threatened use of physical force. The government counters that bank robbery in violation of § 2113(a), a lesser-included offense of § 2113(d) armed bank robbery, satisfies the force clause of § 924(c)(3) because it includes the element that property must be taken “by force and violence, or by intimidation.” As further explained below, we agree with the government. 1. The crimes of violence underlying McNeal’s and Stoddard’s brandishing convictions were the armed bank robberies charged in Counts Two, Four, and Six of the indictment. Armed bank robbery under § 2113(d) has four elements: (1) the defendant took, or attempted to take, money belonging to, or in the custody; care, or possession of, a bank, credit union, or saving and loan association; (2) the money was taken “by force and violence, or by intimidation”; (3) the deposits of the institution were federally insured; and (4) in committing or attempting to commit the offense, the defendant assaulted any person, or put in jeopardy the life of any person, by the use of a dangerous weapon or device. See United States v. Davis, 437 F.3d 989, 993 (10th Cir.2006). The first three elements of armed bank robbery are drawn from § 2113(a) and define the lesser-included offense of bank robbery. The fourth element is drawn from § 2113(d). We focus on the second element: that the money was taken from the" }, { "docid": "21507360", "title": "", "text": "924(c)(3)(A) without regard to the § 924(c)(3)(B) residual clause. Saint Fleur, 826 F.3d at 1305-06,2016 WL 3190539, at *4. This means Gordon’s § 924(c) sentence would be valid even if Johnson makes the § 924(c)(3)(B) residual clause unconstitutional. y. CONCLUSION Because Gordon has failed to make a prima facie showing that his proposed claim meets the statutory criteria, his applications for leave to file a second or successive motion are hereby DENIED. . Although the Supreme Court held that Johnson's invalidation of the residual clause applied retroactively, the Supreme Court remanded Welch's § 2255 proceedings to this Court to determine whether the district court’s denial of the § 2255 motion was correct “on other grounds,” noting that \"the parties continue to dispute whether Welch's strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson.” Welch, 578 U.S. at -, 136 S.Ct. at 1268. . Count 1 charged that Gordon \"did knowingly and willfully obstruct, delay and affect commerce ... by robbery, as the terms 'commerce' and 'robbery' are defined in Title 18, United States Code, Section 1951(b), in that [Gordon] did unlawfully take and obtain property ... from the person, presence and custody of an employee ... against her will, by means of actual and threatened force, violence and fear of injuiy to her person; in violation of Title 18, United States Code, Sections 1951(a), and ... 2.” Count 2 charged that Gordon \"did knowingly use and carry firearms ... during and in relation to a crime of violence which is a felony prosecutable in a court of the United States, that is, a violation of Title 18, United States Code, Section 1951(a), as set forth in Count [1 ] of the indictment-, all in violation of Title 18, United States Code, Section 924(c), and ... Section 2.” (emphasis added). . Gordon's applications do not raise an ACCA claim. This is because Gordon did not receive an ACCA enhancement for his felon-in-possession conviction. . Similarly, the argument that Saint Fleur and Hines conflict" }, { "docid": "5930475", "title": "", "text": "OPINION PER CURIAM: We must decide whether armed bank robbery under federal law is a crime of violence under 18 U.S.C. § 924(c). We hold that it is. The government charged Marcus Watson and Rogussia Danielson with armed-bank robbery committed “by force, violence, and by intimidation,” in violation of 18 U.S.C. § 2113(a) and (d), after they robbed an American Savings Bank while armed with handguns. The government also charged them with using or carrying a firearm during a crime of violence (namely, the armed bank robbery), in violation of 18 U.S.C. § 924(c)(1)(A). Watson and Daniel-son pleaded guilty to both offenses. The district court sentenced Watson to 192 months and Danielson to 182 months in prison. Watson and Danielson did not appeal. But less than a year after entry of judgment, they filed motions under 28 U.S.C. § 2255 challenging the validity of their § 924(c) convictions. They argued that their convictions for using or carrying a firearm during a crime of violence are unlawful because the predicate offense for that charge—armed bank robbery—no longer qualifies as a crime of violence. The district court denied the motions but granted certificates of appealability. On appeal, the government does not raise any procedural barriers to our consideration of this collateral attack. Section 924(c) imposes a mandatory consecutive term of imprisonment for using or carrying a firearm “during and in relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A). The term “crime of violence” is defined as an offense that is a felony and— (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3). Clause (A) of this definition is known as the “force clause” and clause (B). is known as the “residual clause.” We need not address the residual clause because we conclude that the relevant offense of armed bank robbery is a crime" }, { "docid": "21507359", "title": "", "text": "clause). In those cases, the § 924(c) companion conviction clearly qualified as a crime of violence. The applicant’s argument that Saint Fleur and Hines conflict with Pin-der fails because the companion conviction in Pinder was conspiracy to commit Hobbs Act robbery, while Saint Fleur and Hines involved different companion convictions, that is substantive Hobbs Act robbery and armed bank robbery under § 2113(a) and (d), respectively. Indeed this Court specifically distinguished Pinder in both Saint Fleur and Hines. Therefore, we reject the claim that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control Gordon’s case. Accordingly, Saint Fleur controls and we need not decide the § 924(c)(3)(B) residual clause issue in this particular case because even if Johnson’s rule about the ACCA residual clause applies to the § 924(c)(3)(B) residual clause, Gordon’s claim does not meet the statutory criteria for granting his § 2255(h) application. This Court has held that a companion Hobbs Act robbery conviction, such as Gordon’s, qualifies as a “crime of violence” under the use-of-force clause in § 924(c)(3)(A) without regard to the § 924(c)(3)(B) residual clause. Saint Fleur, 826 F.3d at 1305-06,2016 WL 3190539, at *4. This means Gordon’s § 924(c) sentence would be valid even if Johnson makes the § 924(c)(3)(B) residual clause unconstitutional. y. CONCLUSION Because Gordon has failed to make a prima facie showing that his proposed claim meets the statutory criteria, his applications for leave to file a second or successive motion are hereby DENIED. . Although the Supreme Court held that Johnson's invalidation of the residual clause applied retroactively, the Supreme Court remanded Welch's § 2255 proceedings to this Court to determine whether the district court’s denial of the § 2255 motion was correct “on other grounds,” noting that \"the parties continue to dispute whether Welch's strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson.” Welch, 578 U.S. at -, 136 S.Ct. at 1268. . Count 1 charged that Gordon \"did knowingly and willfully obstruct, delay and affect commerce" }, { "docid": "15459464", "title": "", "text": "of the Armed Career Criminal Act (‘'ACCA”). But the ACCA is set out in 18 U.S.C. § 924(e), not § 924(c). Based on his application, we understand Hines to be challenging only his conviction and sentence pursuant to § 924(c). Even were he challenging the sentencing enhancement under the ACCA applied to this conviction on Count 4, that challenge would fail. Because Hines has two prior convictions for armed bank robbery and one prior conviction for bank robbery and use of a firearm in connection with that robbery, any such challenge would be without merit. . Count 2 alleged that Hines had been convicted in 1998 of armed bank robbery, possession of a firearm during a crime of violence, and felon-in-possession of a firearm. Count 2 further indicated that Hines was subject to § 924(c)(l)(C)(i), which calls for a mandatory 25-year sentence for a defendant who has second or subsequent conviction under § 924(c). . Section 924(c)(3) defines a crime of violence as a felony offense that \"(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Section 924(c)(3)(B) is similar, but not identical, to the language of the ACCA residual clause invalidated by the Supreme Court in Johnson. . Similarly, the ACCA’s elements clause, whose validity Johnson did not question, defines \"violent felony” as a crime that \"has as an element the use, attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). . In In re Pinder, this Court stated that the applicant’s § 924(c) sentence \"appear[ed] to have been based on a conviction for conspiracy to commit Hobbs Act robbery.” In re Pin-der, 824 F.3d 977, 979 n. 1, 2016 WL 3081954, at *2 n. 1 (11th Cir. 2016). However, unlike Pinder, this case involves the actual commission of an armed bank robbery. In addition, this order" }, { "docid": "16988981", "title": "", "text": "JILL PRYOR, Circuit Judge: Devon Chance seeks authorization to file a 28 U.S.C. § 2255 motion based on Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Because Mr. Chance already filed one § 2255 motion, his new motion must be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C). Mr. Chance was sentenced under 18 U.S.C. § 924(c), which requires a longer prison sentence whenever a defendant uses a firearm during a “crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The statute provides more than one definition of “crime of violence,” including a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B). Mr. Chance contends this definition, the so-called “residual clause” of § 924(c), is unconstitutional in light of Johnson, which held that the phrase “involves conduct that presents a serious potential risk of physical injury to another” — the “residual clause” in 18 U.S.C. § 924(e)(2)(B)(ii) — is unconstitutionally vague. Recently, we ruled that Johnson’s, holding may invalidate the “very similar” § 924(c)(3)(B) residual clause. See In re Pinder, 824 F.3d 977, 978 (11th Cir.2016). At the same time, we recognized that the “law is unsettled” on this question and left it to the district court to decide in the first instance what effect Johnson had on § 924(e)’s residual clause. Id. Pinder involved a § 924(c) sentence that was based on the companion conviction of conspiracy to commit Hobbs Act robbery. I. Mr. Chance was, like Mr. Pinder, convicted of conspiracy to commit Hobbs" }, { "docid": "15459460", "title": "", "text": "or successive § 2255 motion in the district court. However, merely asserting, in the abstract, a ground that purportedly meets § 2255(h)’s requirements only “represent^] the minimum showing” necessary to file a successive § 2255 motion. In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (granting a state death-row inmate’s successive application because he had proffered detailed evidence, in satisfaction of § 2244(b)(3)(C), that showed “a reasonable likelihood that [he] is mentally retarded” to support his proposed Atkins claim). Rather, § 2244(b)(3)(C) requires the applicant to make “a prima facie showing that the application satisfies the requirements of this subsection.” Id. Accordingly, it is not enough for a federal prisoner to merely cite Johnson as the basis for the claim he seeks to raise in a second or successive §2255 motion. Instead, the prisoner must also make a prima facie showing that he falls within the scope of the new substantive rule announced in Johnson. See, e.g., id.; 28 U.S.C. § 2244(b)(3)(C). Here, Hines was convicted of the following offenses: Count 1 — an armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); Count 2 — -the use of a firearm in furtherance of the above crime of violence set out in Count 1, in violation of 18 U.S.C. § 924(c); Count 3 — possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; and Count 4 — felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). As to Counts 1 and 4 (the conviction for armed bank robbery and the conviction for being a felon in possession of a firearm), the district court sentenced Hines to 262-months’ imprisonment on each count, with the sentences to run concurrently to each other. As to Count 3 (possession of an unregistered short-barrel rifle), the court imposed a 120-month sentence, also to run concurrently to the sentences for Counts 1 and 4. As to Count 2 — the count of conviction in question here — under which Hines was convicted for his use of a firearm during the armed bank" }, { "docid": "7168407", "title": "", "text": "924(c)’s residual clause, it further refused to broadly condemn other criminal laws that used risk-based terms. Johnson, 135 S.Ct. at 2561 (indicating that, contrary to fears expressed by the Government, its holding did not mean that other criminal statutes that used terms .such as “substantial risk” were necessarily in “constitutional doubt”). Second, § 924(c)’s residual clause has not been subject to the same kind of uncertainty in application that long plagued the residual clause of the ACCA and ultimately led the Supreme Court to strike that clause. See id. at 2559-60 (discussing the uncertainty experienced in applying the ACCA’s residual clause). In short, there are reasons to question whether the Supreme Court’s striking of the ACCA’s residual clause means that §’ 924(c)’s clause is also invalid and, if so, whether the Supreme Court has expressed that conclusion clearly enough in Johnson to warrant permitting a prisoner convicted under § 924(c) to file a second or successive petition on such an uncertain basis. Nevertheless, in executing our gatekeeper function as to claims asserting that § 924(c)’s residual clause is now also invalid as a result of Johnson, we have assumed, as a threshold matter, that it might be. See In re Pinder, No. 16-12084, 824 F.3d 977, 978-79, 2016 WL 3081954, at *2 (11th Cir. June 1, 2016). But where it is clear that a § 924(c) conviction is based on an underlying offense that satisfies the statute’s force clause, we have said so and, in those cases, we have denied the application for a second or successive § 2255 motion. For example, we have held that armed bank robbery and Hobbs Act robbery clearly meet the requirements of § 924(c)(3)(A)’s force clause, and therefore have found no prima facie showing by an applicant who seeks to make a Johnson challenge as to those convictions in a successive motion. See In re Hines, No. 16-12454, 824 F.3d 1334, 1336-37, 2016 WL 3189822, at *2-3 (11th Cir. June 8, 2016) (explaining that armed bank robbery under 18 U.S.C. § 2113 is a crime of violence under § 924(e)(3)(A)’s force clause); In re" } ]

[ { "docid": "18593475", "title": "", "text": "have found a “narrow exception,” Firestone, 449 U.S. at 374,101 S.Ct. at 673, and the same is true for the finality rule of section 1291. We traditionally have not looked upon piecemeal appeals with any degree of favor. See Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60-61 (6th Cir. 1986) (district court certification under Fed. R.C.P. 54(b), which governs multiple claims or claims involving multiple parties, vacated because no justification for certification given). Yet, the collateral order doctrine has evolved so that a “small class” of prejudgment orders may be appealed immediately. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). To be appealable, these prejudgment orders must “finally determine claims of right separable from, and collateral to, rights asserted in the action, [and must be] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. The Supreme Court clarified this collateral order doctrine in Richardson-Merrell, Inc. v. Roller, - U.S. -, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), a case holding that attorney disqualification in the civil context is not immediately appealable. “[A]t a minimum,” the order must “satisfy three conditions: It must ‘conclusively determine the disputed question,’ ‘resolve an important issue completely separate from the merits of the action,’ and ‘be effectively unreviewable on appeal from a final judgment.’ ” Richardson-Merrell, — U.S. at-, 105 S.Ct. at 2761 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)). The Supreme Court, in Mitchell v. Forsyth, — U.S. -, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), held that the denial of summary judgment on the issue of qualified immunity satisfied these requirements and was appealable immediately, even though no final judgment in the case as a whole has been entered. Mitchell interpreted Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982), as recognizing that qualified immunity was an “entitlement” to immunity from suit and the burdens" } ]

[ { "docid": "3739296", "title": "", "text": "collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Thus was born the “collateral order doctrine,” which “establishes that certain decisions of the district court are final in effect although they do not dispose of the litigation.” Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925 (5th Cir.1996). The Cohen Court noted that it “ha[d] long given [§ 1291] this practical rather than a technical construction,” 337 U.S. at 546, 69 S.Ct. 1221, and later courts have emphasized that “[t]he collateral order doctrine is best understood not as an exception to the ‘final decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of it,” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); see also Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006); Regan v. Starcraft Marine, LLC, 524 F.3d 627, 632 (5th Cir.2008); Sherwinski v. Peterson, 98 F.3d 849, 851 (5th Cir.1996). The primary issue in the present appeal, then, is whether a district court’s denial of an Article 971 motion is among that “small class of interlocutory orders [that] are immediately appealable to the courts of appeals.” Nixon v. Fitzgerald, 457 U.S. 731, 742, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). To fall within Cohen’s collateral order doctrine, an “order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (numbering added); see also Will, 546 U.S. at 349, 126 S.Ct. 952 (noting that “[t]he requirements for collateral order appeal have been distilled down to [these] three conditions”). Although the second condition requires that an issue be “important,” there has been much confusion over where importance actually applies. See Kelly v. Ford Motor Co." }, { "docid": "3945288", "title": "", "text": "held in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that “a district court’s denial of a claim of qualified immunity ... is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 2817; see Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.1986); Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986). The essence of the Court’s holding in Mitchell is that qualified immunity represents an entitlement not to stand trial at all. Thus, if an erroneous and adverse summary judgment motion were unreviewable at this juncture, the deprivation of the right would in effect never be subject to review, since by hypothesis a trial would occur before review could be had. The entitlement is an immunity from suit rather than a mere defense to liability; and ... it is effectively lost if a case is erroneously permitted to go to trial. Accordingly ... the denial of qualified immunity should be ... appealable____ [T]he district court’s decision is effectively unreviewable on an appeal from a final judgment. Mitchell v. Forsyth, 105 S.Ct. at 2816. The Court also found that a district court’s denial of a summary judgment motion respecting qualified immunity satisfies the other two elements of the collateral order doctrine: conclusive determination of the issue in dispute, and presentation of a claim “ ‘separable from, and collateral to rights asserted in the action.’ ” Id. at 2816, (quoting Cohen v. Beneficial Indus trial Loare Corp., 69 S.Ct. at 1225); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). Here, Reynolds appeals from the denial of a summary judgment motion, in which the district court found that he was not entitled to qualified immunity. At first blush, this case appears to be controlled by Mitchell But Reynolds, unlike Mitchell, is also named as a defendant in Brown’s ADEA claim, which has survived summary judgment. That order, of course, is an unappealable interlocutory order. Thus, Reynolds must stand trial, even were we to rule that" }, { "docid": "12634274", "title": "", "text": "Procedure 12(b)(1) and (6), arguing that Cafiero, Melamed-Turck, and Pirkle could not be held individually liable under the ADEA, and that the Board of Education, as an arm of the State of New York, was immune from suit under the Eleventh Amendment. The district court (Lawrence E. Kahn, Judge) agreed with the former argument 'and dismissed the ADEA claim against the individual defendants, but it rejected the Board’s Eleventh Amendment claim, relying on this court’s decisions in Fay v. South Colonie Central School District, 802 F.2d 21, 27-28 (2d Cir.1986) (rejecting school district claim of Eleventh Amendment immunity), overruled on other grounds by Taylor v. Vt. Deft of Educ., 313 F.3d 768, 786 (2d Cir.2002), and Mancuso v. New York State Thruway Authority, 86 F.3d 289, 291 (2d Cir.1996). See Woods v. Cafiero, No. 04-0695, 2005 WL 3871601, at *1-2, *5, 2005 U.S. Dist. LEXIS 5780, at *4-5, *15-16 (N.D.N.Y. Feb. 7, 2005). The Board sought interlocutory review of the district court’s Eleventh Amendment ruling. II. Discussion A. Jurisdiction and Standard of Review In general, this court’s appellate jurisdiction is confined to final judgments. See 28 U.S.C. § 1291. Because the denial of a motion to dismiss is not a final judgment, it is “not immediately appealable unless it satisfies the ‘collateral order’ exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).” Bernard v. County of Suffolk, 356 F.3d 495, 501 (2d Cir.2004); see Mancuso v. New York State Thruway Auth., 86 F.3d at 291. Under the collateral order doctrine, a non-final order is appealable only if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. See Will v. Hallock, — U.S. -, -, 126 S.Ct. 952, 957, 163 L.Ed.2d 836 (2006). The Supreme Court has held that orders rejecting Eleventh Amendment immunity claims fall squarely within the collateral order exception: “ ‘States and state entities that claim to be “arms of the state” may take advantage of the collateral" }, { "docid": "3945287", "title": "", "text": "law when Brown’s employment relationship was severed such as to present a § 1983 claim against Reynolds. The district court denied Reynolds’ motion, and he takes this appeal. II. Jurisdiction Brown asserts, without elaboration or authority, that “[t]his interlocutory appeal does not deal with a ‘final order’ in any true sense.” Appellee’s Brief at 1. Thus, Brown would apparently argue, we do not have jurisdiction under 28 U.S.C. § 1291. This case, however, is within the “collateral order doctrine,” because it presents the appeal of a denial of a summary judgment motion holding that Reynolds does not have qualified immunity. There exists a “small class [of cases] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Relying on Cohen and its progeny, the Supreme Court held in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that “a district court’s denial of a claim of qualified immunity ... is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 2817; see Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.1986); Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986). The essence of the Court’s holding in Mitchell is that qualified immunity represents an entitlement not to stand trial at all. Thus, if an erroneous and adverse summary judgment motion were unreviewable at this juncture, the deprivation of the right would in effect never be subject to review, since by hypothesis a trial would occur before review could be had. The entitlement is an immunity from suit rather than a mere defense to liability; and ... it is effectively lost if a case is erroneously permitted to go to trial. Accordingly ... the denial of qualified immunity should be ... appealable____ [T]he district court’s decision is" }, { "docid": "10086815", "title": "", "text": "F.2d 1540, 1543 (11th Cir. 1992) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)). Such an order conclusively determines whether a government official is entitled to immunity from suit in his individual capacity, an important issue that is separate from the merits of the case. Mitchell, 472 U.S. at 527-528, 105 S.Ct. at 2816. And as qualified immunity protects public officials from the burden of litigation, rather than just liability, its protection is irretrievably lost — in a ruling that is “effectively unre-viewable on appeal from a final judgment” — when a claim to qualified immunity is denied in an interlocutory order. Id. at 525-27, 105 S.Ct. at 2814-16. Similarly,- an order denying state official or sovereign immunity is immediately appealable if state law defines the immunity at issue to provide immunity from suit rather than just a defense to liability. See Tinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996) (“Alabama intended for its state officers to be immune from suit. As such, the denial of summary judgment based on sovereign immunity is properly before us on interlocutory appeal.”); Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir. 1992) (“Because sovereign immunity under Georgia law is an immunity from suit, ... we have jurisdiction over the district court’s order denying summary judgment based on sovereign immunity under Georgia law.”). As with federal qualified immunity, the denial of state official or sovereign immunity conclusively resolves an important issue that is separate from the merits of the case. See Chiesel, 963 F.2d at 340. If the state immunity is intended to shield a governmental entity or official from suit rather than just liability, its denial in an interlocutory order is also “effectively unreviewable after trial.” Id. This Court, however, has interpreted Florida sovereign immunity law to provide only,a defense to liability, rather than immunity from suit. CSX Transp., Inc. v. Kissimmee Util. Auth., 153 F.3d 1283, 1286 (11th Cir. 1998) (per curiam). Based on that interpretation, we held in CSX that an order denying Florida sovereign immunity is not immediately appeal-able under" }, { "docid": "20807322", "title": "", "text": "of a high order.” 546 U.S. at 352, 126 S.Ct. 952. “That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is effectively unreviewable if review is to be left until later.” Id. at 353, 126 S.Ct. 952 (citation and internal quotation marks omitted). As the Metabolic Research court explained, “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to be tried, is imbued with a significant public interest.” 693 F.3d at 800; see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (“When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its ‘importance.’”). Likewise, “[i]t would be difficult to find a value of a ‘high[er] order’ than the constitutionally-protected rights to free speech and petition that are at the heart of [an] anti-SLAPP statute. Such constitutional rights deserve particular solicitude within the framework of the collateral order doctrine.” DC Comics, 706 F.3d at 1015-16 (second alteration in original). Thus, we hold that this Court has jurisdiction to interlocutorily consider the denial of a TCPA anti-SLAPP motion to dismiss. B. The TCPA’s Applicability in Federal Court Kool Smiles argues on appeal that the TCPA does not apply in federal court because it conflicts with both FRCP 12(d) and Federal Rule of Appellate Procedure (“FRAP”) 4. M & B argues that Kool Smiles did not raise this specific argument before the district court and thus it is waived. We agree. As a general rule, “[a]n argument not raised before the district court cannot be asserted for the first time on appeal.” XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd. 513 F.3d 146, 153 (5th Cir.2008). Merely mentioning a legal issue in general terms is also insufficient; an argument must be “raised to such a degree that the trial court may rule" }, { "docid": "5981051", "title": "", "text": "many insubstantial claims on summary judgment and to avoid subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is permitted to go to trial.” Id. at 1396 (citing Mitchell, 472 U.S. at 527, 105 S.Ct. 2806). Because state action immunity was premised upon the Parker Court’s finding that “nothing in the language of the Sherman Act or in its history [ ] suggests that its purpose was to restrain a state or its officers or agents from activities- directed by its legislature,” Parker, 317 U.S. at 350-51, 63 S.Ct. 307 (emphasis added), the defendant’s status as a public entity in Martin gave rise to similar concerns. We therefore concluded that the reasoning that underlies the immediate appealability of an. order denying absolute, qualified or Eleventh Amendment immunity indicates that the denial of state action immunity to a state, its officers, or its agents should be similarly appealable: in each case, the district court’s decision that the public defendant must go to trial is effectively unre-viewable on appeal from a final judgment. See Martin, 86 F.3d at 1396. Wenger’s status as a private defendant does not implicate these concerns. The Parker i). Brown state action doctrine, like the doctrine of qualified immunity, is “interpreted to create an immunity from suit and not just from judgment — to spare state officials the burdens and uncertainties of the litigation itself as well as the cost of an adverse judgment.” Segni v. Commercial Office of Spain, 816 F.2d 344, 346 (7th Cir.1987) (citing Commuter Transp. Systems, Inc., 801 F.2d at 1289-90); see also 1 Phillip E. Areeda and Herbert Hovenkamp, Antitrust Law ¶222b (Revised ed. 1997) (“The importance of Parker’s status as an immunity is particularly strong when the defendant is a government agency, subdivision, or government official carrying out duties." }, { "docid": "7248773", "title": "", "text": "in ordering the Congo to post security, there is no basis for us to consider mandamus. The Congo finally requests that we reassign this matter to a different judge on remand because of Judge Preska’s “hostility towards the Congo.” This argument is of no merit whatsoever, as the Congo does not contend that Judge Preska’s “hostility” arises from an extrajudicial source, nor can the Congo satisfy the onerous burden of proving that Judge Preska “display[ed] a dep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). We hasten to add that, should the Congo persist in its pattern of obstruction and recalcitrance, it may find that more and more judges seem hostile. CONCLUSION The order to post security is not appeal-able under the collateral order doctrine. We therefore dismiss the appeal. Construing the appeal as a petition for mandamus, we deny the petition. . The Supreme Court has since held that even the avoidance of trial is not, by itself, sufficient to satisfy the “effectively unreviewable” prong of the collateral order test. \"[I]t is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is 'effectively' unreviewable if review is to be left until later.” Hallock, 126 S.Ct. at 959 (emphasis added); accord South Carolina State Bd. of Dentistry v. FTC, 455 F.3d 436, 2006 WL 1134136 at *5 (4th Cir. May 1, 2006) (applying Hallock to a case where petitioner appealed the FTC’s rejection of its Parker immunity defense and concluding that the collateral order doctrine does not apply because no “particular value of a high order was marshaled in support of the interest in avoiding trial.” (citation omitted))." }, { "docid": "3198021", "title": "", "text": "not enough after Will that the nonliability that Seneca and Javitch invoke is described as an “immunity.” For example, the Fourth Circuit has recently ruled that a State cannot immediately appeal a denial of “Parker immunity” or “state action antitrust immunity” in an antitrust action against the State because determining whether “Parker protection” was proper would force appellate courts to consider prematurely the merits and because the immunity issue is fully reviewable on appeal. S.C. State Bd. of Dentistry v. F.T.C., — F.3d-, 2006 WL 1134136 (4th Cir. 2006); see also Surgical Care Ctr. of Hammond, L.C. v. Hosp. Serv. Dist. No. 1, 171 F.3d 231, 234 (5th Cir.1999) (en banc) (“Parker immunity is an inapt description, for its parentage differs from the qualified and absolute immunities of public officials .... While thus a convenient shorthand, ‘Parker immunity’ is more accurately a strict standard for locating the reach of the Sherman Act than the judicial creation of a defense to liability for its violation.”); Digital Equip., 511 U.S. at 869, 114 S.Ct. 1992 (“[Djespite Digital’s position that it holds a ‘right not to stand trial’ ... rights under private settlement agreements can be adequately vindicated on appeal from final judgment.”). Moreover, although the privilege of a spouse not to testify or not to have his spouse testify is referred to as “spousal immunity privilege,” see, e.g., Engberg v. Wyoming, 265 F.3d 1109, 1121 (10th Cir.2001), we have uncovered no instances where an appellate court entertained an interlocutory appeal from the denial of spousal immunity. The nature of the protection is what is important, not the loose ability of an attorney to use the term “immunity.” Second, even if we assume that advocacy immunity protects attorneys from the burdens of trial, the asserted interest that interlocutory appeal will allegedly protect — “preserving the integrity of the judicial process, and the free and unfettered administration of justice” — is not of comparable “high order” to those interests identified in Will. The resolution of a trial court’s error following a final order will not cause lawyers to act less zealously, the administration of" }, { "docid": "5981040", "title": "", "text": "the order presently under review by this court is interlocutory. See In re Corrugated Container Antitrust Litigation, 694 F.2d 1041, 1042 (5th Cir.1983); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2715 (3rd ed.1998). Under the collateral order doctrine, however, an interlocutory district court decision is immediately appealable as a final decision under § 1291 if it (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). If the order at issue fails to satisfy any one of these requirements, it is not an appeal-able collateral order. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). Wenger asserts that an order denying a summary judgment motion premised upon either the state action or the Noerr-Pen-nington doctrine is immediately appealable under the collateral order doctrine. We conclude, however, that, while both doctrines afford a defense to liability, the state action doctrine does not provide an immunity to suit to a private party, and the Noerr-Pennington doctrine does not provide anyone a right not to stand trial. Consequently, the district court’s denial of Wenger’s motion for summary judgment is not an appealable collateral order. 1. State Action Doctrine In Martin v. Memorial Hospital at Gulfport, 86 F.3d 1391 (5th Cir.1996), this court recognized that an appeal by a municipal-state subdivision hospital on the issue of whether it acted pursuant to a clearly articulated and affirmatively expressed policy can be taken immediately under the collateral order doctrine. See 86 F.3d at 1394; see also TEC Cogeneration Inc. v. Florida Power & Light Co., 76 F.3d 1560, 1564 n. 1 (11th Cir.), modified, 86 F.3d 1028 (11th Cir.1996)(denial of a motion for summary judgment brought by a public utility under the state action immunity doctrine is immediately appealable under the collateral order doctrine); Askew v. DCH Regional Health Care Au thority, 995 F.2d 1038, 1036" }, { "docid": "12686832", "title": "", "text": "remaining counts. REVERSED AND REMANDED. . The county actually moved to dismiss the entire complaint, but the district court order addressed only the federal antitrust claims and ordered the county to answer the remainder of the complaint. On appeal, we address only the decision respecting the federal antitrust claims. We have jurisdiction to hear this appeal under the collateral order doctrine because the immunity asserted here includes immunity from suit. See 28 U.S.C. §§ 1291, 1292 (2006); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (establishing three-part test for collateral orders excepted from the final judgment requirement for appealability); Martin v. Mem’l Hosp. At Gulfport, 86 F.3d 1391, 1394-97 (5th Cir.1996) (explaining that orders denying claims of state action immunity are immediately appealable under Cohen); Commuter Transp. Systems, Inc. v. Hillsborough County Aviation Auth., 801 F.2d 1286, 1289-90 (11th Cir.1986) (holding that an order denying summary judgment on state action immunity grounds was immediately appealable). . Neither in the complaint, in brief, nor at oral argument did Danner and Gateway’s counsel clarify whether their challenge to the ordinance was facial or as-applied. Regardless of whether the statute is challenged on its face or in its application, our review of the state action immunity question is the same. IA Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 221a (3d ed. 2006) (\"In both [facial and as-applied] cases, once the inconsistency sufficient to warrant prima facie preemption is found, the statute or practice survives the test only if these additional requirements are met .... ’’). To reach the immunity question in this interlocutory appeal, we will assume that the Sherman Act preempts both the statute on its face and the county’s application of the ordinance. . Danner and Gateway also argue that the ordinance conflicts with other provisions of state law not related to the enabling statute. For our purposes, the fact that a local ordinance may conflict with a different state law may present a state law cause of action, but the noncompliance does not rise to the level of" }, { "docid": "5981042", "title": "", "text": "(11th Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 603, 126 L.Ed.2d 568 (1993) (same result where defendant moving for summary judgment is a public hospital); Commuter Transp. Systems, Inc. v. Hillsborough County Aviation Authority, 801 F.2d 1286, 1289 (11th Cir.1986)(same result where defendant is public airport authority); but see Huron Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563, 567-68 (6th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986) (denial of state action antitrust exemption to state officials is not an appealable collateral order because state action questions did not reflect an entitlement to avoid the burdens of trial, could be preserved for review on appeal from a final judgment, and were bound up with the merits). In Martin, a nephrologist brought an antitrust action against a public hospital, owned and operated by a municipality and a state subdivision hospital district, and against the hospital’s board of trustees to enjoin the enforcement of the hospital’s contract with the medical supervisor of its End Stage Renal Disease facility. See 86 F.3d at 1392-93. We concluded that the public hospital’s state action immunity claim entailed a right not to bear the burden of the suit such that, regardless of the outcome, denial of the right would be effectively unreviewable after trial. See id. at 1396. We also concluded that the interlocutory order in Martin satisfied the remaining two criteria of the collateral order doctrine: it conclusively determined the disputed question and that question involved a claim of right separable from, and collateral to, rights asserted in the action. See id. at 1396-97. The express holding of Martin limited extension of the collateral order doctrine to the denial of a claim of state action immunity “to the extent that it turns on whether a municipality or subdivision acted pursuant to a clearly articulated and affirmatively expressed state policy.” Id. at 1397 (emphasis added). Wenger argues that a private party seeking immunity from antitrust suit and liability under the state action doctrine should also be permitted to appeal immediately from a denial of summary judgment on these" }, { "docid": "20807321", "title": "", "text": "a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005.” Tex. Civ. Prac. & Rem.Code Ann. § 27.008(b). Consistent with Batzel, Go-din, Englert, and Metabolic Research, it appears that, by providing this right, the Texas legislature has indicated the nature of the underlying right the TCPA seeks to protect. That right is not simply the right to avoid ultimate liability in a SLAPP case, but rather is the right to avoid trial in the first instance. Thus, “[b]ecause the anti-SLAPP motion is designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression, the district court’s denial of an anti-SLAPP motion would effectively be unreviewable on appeal from a final judgment.” Batzel, 333 F.3d at 1025. We also note that this conclusion is consistent with the Supreme Court’s most recent pronouncements on the collateral order doctrine. In Will, for example, the Court explained that immediate review must advance “some particular value of a high order.” 546 U.S. at 352, 126 S.Ct. 952. “That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is effectively unreviewable if review is to be left until later.” Id. at 353, 126 S.Ct. 952 (citation and internal quotation marks omitted). As the Metabolic Research court explained, “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to be tried, is imbued with a significant public interest.” 693 F.3d at 800; see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (“When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its ‘importance.’”). Likewise, “[i]t would be difficult to find a value of a ‘high[er] order’ than the constitutionally-protected rights to free speech and petition" }, { "docid": "13055826", "title": "", "text": "demonstrated] a real prospect of irreparable harm”). We pause briefly to consider whether the SAA’s sovereign immunity argument distinguishes its case from precedent. It does not. The United States, as sovereign, “is immune from suit save as it consents to be sued, and the terms of consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citations omitted). In Digital Equipment Corporation v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994), the Supreme Court affirmed the proposition enunciated in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that “orders denying certain immunities are strong candidates for prompt appeal under § 1291.” Digital Equip., 511 U.S. at 871, 114 S.Ct. 1992. Where the immunity guarantees a right not to stand trial, for instance, that right may be irretrievably lost if immediate review is not available. In re Sealed Case, No. 99-3091, 192 F.3d 995, 999 (D.C.Cir.1999) (“The right to be free from the burdens of trial is effectively unreviewable on appeal from a final judgment.”); see also Midland Asphalt Corp. v. United States, 489 U.S. 794, 800-01, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (“[Deprivation of the right not to be tried satisfies the ... requirement of being ‘effectively unreviewable on appeal from a final judgment.’ ” (quoting Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454)). Even the alleged denial of a right not to stand trial does not automatically merit immediate review. See Digital Equip., 511 U.S. at 873, 114 S.Ct. 1992. As the Supreme Court stated in Will v. Hallock, “it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is ‘effectively’ unreviewable if review is to be left until later.” Will, 126 S.Ct. at 959 (internal citation omitted). In Will, the Court held that" }, { "docid": "17124126", "title": "", "text": "Cir.1998). Several circuits have held that a denial of a substitution motion is immediately appealable under the collateral order doctrine because it is in essence a denial of qualified immunity for the government employee. See, e.g., Lyons v. Brown, 158 F.3d 605, 607 (1st Cir.1998) (noting that denials of qualified immunity are ordinarily subject to immediate appeal and that “qualified immunity in federal civil rights actions and Westfall Act immunity are treated in the same fashion”); Taboas, 149 F.3d at 579 (“A denial of the United States’ motion for substitution under the Westfall Act is immediately appealable under the collateral order doctrine.”); Rodriguez v. Sarabyn, 129 F.3d 760, 764 (5th Cir.1997) (noting the court has jurisdiction to review the denial of a certification that a defendant’s acts were within the scope of employment under the collateral order doctrine). The entitlement of immunity from suit, rather than a mere defense to liability for money damages, “is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 611, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because “the district court’s decision is effectively unreviewable on appeal from final judgment,” immediate review is necessary. Id. at 527, 105 S.Ct. 2806. The issue before us, however, is the grant of a substitution motion, not a denial. A grant of qualified immunity does not satisfy the Cohen test for immediate interlocutory appeal because the issue may be effectively appealed after a final judgment — immunity is not lost where it has been granted. See Erickson v. Holloway, 77 F.3d 1078, 1081 (8th Cir.1996). Similarly, a grant of a substitution motion may be effectively appealed after final judgment without the government employee losing any immunity to which he may have been entitled. See Maron v. United States, 126 F.3d 317, 321 n. 4 (4th Cir.1997) (noting that a grant of substitution does not satisfy the Cohen test for interlocutory review under the collateral order doctrine). Thus, the grant of a substitution motion is not immediately appealable prior to final judgment. III. Accordingly, we dismiss Kassuelke’s appeal for lack of" }, { "docid": "5534570", "title": "", "text": "U.S. at 527, 105 S.Ct. at 2815. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute, qualified or Eleventh Amendment immunity indicates that the denial of state action immunity should be similarly appeal-able: in each case, the district court’s decision is effectively unreviewable on appeal from a final judgment. See Praxair, Inc. v. Florida Power & Light Co., 64 F.3d 609, (11th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 1678, 134 L.Ed.2d 781 (1996); Commuter Transportation Systems, Inc. v. Hills-borough County, 801 F.2d 1286, 1289 (11th Cir.1986); see also Askew v. DCH Regional Health Care Authority, 995 F.2d 1033, 1036 (11th Cir.), cert. denied, -U.S.-, 114 S.Ct. 603, 126 L.Ed.2d 568 (1993); Segni v. Commercial Office of Spain, 816 F.2d 344, 345 (7th Cir.1987): Where the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the burden of the suit itself, regardless of outcome, the denial of that right, as by denying a motion to dismiss the suit, is appealable immediately by virtue of the collateral order doctrine. An appeal after judgment would come too late to protect the right. It is on the basis of this reasoning that the rejection of a double-jeopardy defense, the rejection of a defense of a public official’s qualified immunity from suit, and the rejection of a witness’s absolute immunity from suit, are appealable immediately. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985); San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 254 (2d Cir.1984). But see Huron Valley Hospital v. City of Pontiac, 792 F.2d 563 (6th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986) (Contains contrary, less persuasive dicta but is inapposite because the requirement that the immunity claim be completely separate from the merits of the original claim was not met). An appealable interlocutory decision must satisfy two additional criteria: it must conclusively determine the disputed question and" }, { "docid": "12686831", "title": "", "text": "in spite of its faulty application of the state action immunity framework, acknowledged that Parker state action immunity should shield the county’s conduct under the ordinance. The authorizing state legislation contemplated, and most likely intended, the anti-competitive effects that resulted when the county promulgated its ordinance. The ordinance complies with the authorizing statute, which allows the county to take exclusive control of'waste collection. Because the county has acted pursuant to a clearly articulated anticompetitive policy of the state, we conclude that its actions are immune from antitrust liability. IV. CONCLUSION This antitrust challenge to a traditional area of state and municipal regulation fails because of the applicability of state action immunity. The county, acting in its authorized capacity as regulator of waste collection, services, is immune from antitrust liability as a state actor. None of the federal antitrust claims now on appeal can stand against the county, and the district court should have ordered dismissal. We reverse the district court order denying dismissal of Counts I and II and remand for further proceedings regarding the remaining counts. REVERSED AND REMANDED. . The county actually moved to dismiss the entire complaint, but the district court order addressed only the federal antitrust claims and ordered the county to answer the remainder of the complaint. On appeal, we address only the decision respecting the federal antitrust claims. We have jurisdiction to hear this appeal under the collateral order doctrine because the immunity asserted here includes immunity from suit. See 28 U.S.C. §§ 1291, 1292 (2006); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (establishing three-part test for collateral orders excepted from the final judgment requirement for appealability); Martin v. Mem’l Hosp. At Gulfport, 86 F.3d 1391, 1394-97 (5th Cir.1996) (explaining that orders denying claims of state action immunity are immediately appealable under Cohen); Commuter Transp. Systems, Inc. v. Hillsborough County Aviation Auth., 801 F.2d 1286, 1289-90 (11th Cir.1986) (holding that an order denying summary judgment on state action immunity grounds was immediately appealable). . Neither in the complaint, in brief, nor at oral" }, { "docid": "5534569", "title": "", "text": "deterrence of able people from public service. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; Harlow, 457 U.S. at 816, 102 S.Ct. at 2737. “Indeed, Harlow emphasizes that even such pretrial matters as discovery are to be avoided if possible, as ‘[¡Inquiries of this kind can be peculiarly disruptive of effective government.’” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (quoting Harlow, 457 U.S. at 817, 102 S.Ct. at 2737). With these concerns in mind, the Harlow Court refashioned the qualified immunity doctrine in sueh a way as to permit the resolution of many insubstantial claims on summary judgment and to avoid subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery in eases where the legal norms the officials are alleged to have violated were not clearly established at the time. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Mitchell, 472 U.S. at 527, 105 S.Ct. at 2815. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute, qualified or Eleventh Amendment immunity indicates that the denial of state action immunity should be similarly appeal-able: in each case, the district court’s decision is effectively unreviewable on appeal from a final judgment. See Praxair, Inc. v. Florida Power & Light Co., 64 F.3d 609, (11th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 1678, 134 L.Ed.2d 781 (1996); Commuter Transportation Systems, Inc. v. Hills-borough County, 801 F.2d 1286, 1289 (11th Cir.1986); see also Askew v. DCH Regional Health Care Authority, 995 F.2d 1033, 1036 (11th Cir.), cert. denied, -U.S.-, 114 S.Ct. 603, 126 L.Ed.2d 568 (1993); Segni v. Commercial Office of Spain, 816 F.2d 344, 345 (7th Cir.1987): Where the right asserted by way of defense to a lawsuit is (or includes) a right not to bear the burden of the suit itself, regardless of outcome, the denial of that right, as by denying a motion to dismiss the suit, is appealable immediately by virtue" }, { "docid": "5981041", "title": "", "text": "however, that, while both doctrines afford a defense to liability, the state action doctrine does not provide an immunity to suit to a private party, and the Noerr-Pennington doctrine does not provide anyone a right not to stand trial. Consequently, the district court’s denial of Wenger’s motion for summary judgment is not an appealable collateral order. 1. State Action Doctrine In Martin v. Memorial Hospital at Gulfport, 86 F.3d 1391 (5th Cir.1996), this court recognized that an appeal by a municipal-state subdivision hospital on the issue of whether it acted pursuant to a clearly articulated and affirmatively expressed policy can be taken immediately under the collateral order doctrine. See 86 F.3d at 1394; see also TEC Cogeneration Inc. v. Florida Power & Light Co., 76 F.3d 1560, 1564 n. 1 (11th Cir.), modified, 86 F.3d 1028 (11th Cir.1996)(denial of a motion for summary judgment brought by a public utility under the state action immunity doctrine is immediately appealable under the collateral order doctrine); Askew v. DCH Regional Health Care Au thority, 995 F.2d 1038, 1036 (11th Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 603, 126 L.Ed.2d 568 (1993) (same result where defendant moving for summary judgment is a public hospital); Commuter Transp. Systems, Inc. v. Hillsborough County Aviation Authority, 801 F.2d 1286, 1289 (11th Cir.1986)(same result where defendant is public airport authority); but see Huron Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563, 567-68 (6th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986) (denial of state action antitrust exemption to state officials is not an appealable collateral order because state action questions did not reflect an entitlement to avoid the burdens of trial, could be preserved for review on appeal from a final judgment, and were bound up with the merits). In Martin, a nephrologist brought an antitrust action against a public hospital, owned and operated by a municipality and a state subdivision hospital district, and against the hospital’s board of trustees to enjoin the enforcement of the hospital’s contract with the medical supervisor of its End Stage Renal Disease facility. See" }, { "docid": "11869368", "title": "", "text": "to apply, the Supreme Court has instructed that the district court’s decision must “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unre-viewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Our task, then, is to determine whether the district court’s subject-matter jurisdiction decision satisfies the three prongs of the collateral order exception under Coopers & Lybrand. The decision easily meets the first two prongs because it conclusively determines the issue of subject-matter jurisdiction and that issue is separate from the merits. As to whether the decision is effectively unreviewable on appeal from final judgment, we note that the issue here is subject-matter jurisdiction based on sovereign immunity. We have observed previously that “ ‘sovereign immunity is an immunity from trial and the attendant burdens of litigation ... ’ ” Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir.1990) (quoting Rush-Presbyterian-St. Luke’s Med. Ctr. v. Hellenic Republic, 877 F.2d 574, 576 n. 2 (7th Cir.1989)). This is so because when the issue is jurisdictional immunity, “appeal from final judgment cannot repair the damage that is caused by requiring the defendant to litigate.” Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748, 756 (2d Cir.1998). Consequently, “[t]he denial of a motion to dismiss on the ground of sovereign immunity satisfies all three [Coopers & Lybrand ] criteria, and is therefore subject to interlocutory review.” Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C.Cir.2004). LRA nevertheless argues that the issue does not fall within the collateral order exception because Libya’s claim concerns only whether LRA can assert the same claims that its assignors and subrogors can assert, and an appeal of that issue would not involve the avoidance of a trial that would “imperil a substantial public interest,” Will v. Hallock, 546 U.S. 345, 353, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006), and therefore is not effectively unreviewable if left until a later time. But LRA mischaracterizes" } ]

[ { "docid": "3339447", "title": "", "text": "PER CURIAM. James McAlphin, an Arkansas prisoner, appeals the District Court’s dismissal of his 42 U.S.C. § 1983 action for failure to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a) (inmate cannot bring § 1983 action challenging prison conditions until available administrative remedies are exhausted). After reviewing the District Court’s factual findings for clear error and its conclusions of law de novo, see Kozohorsky v. Harmon, 332 F.3d 1141, 1143 (8th Cir.2003), we reverse. McAlphin filed an in forma pauperis complaint against Varner SuperMax Warden Rick Toney, Grievance Officer Terri Brown, and Dr. Stanley Ware. He alleged that defendants denied him immediate dental extractions because there was no dental lab at Varner SuperMax; that To-ney and Dr. Ware had “ignored his request[s]” and had not allowed him to be escorted down the hall to receive treatment at the Varner Unit infirmary (the Varner Unit was attached to Varner Su-perMax); and that Toney and Brown had refused to view his situation as an emergency and had shown deliberate indifference to “problems.” McAlphin’s gums became so infected that five teeth — two more than originally needed — had to be extracted and two additional extractions were required. To his complaint, McAl-phin attached three grievances, each fully exhausted, about his dental treatment. The District Court dismissed the complaint before service of process on the ground that McAlphin was not entitled to proceed i.f.p. because he had brought three or more prior actions that were dismissed as frivolous. See 28 U.S.C. § 1915(g). McAlphin appealed the dismissal. We remanded, concluding that, by alleging he needs two more tooth extractions and an infection is spreading in his mouth, MeAlphin’s complaint fell within the “imminent danger of serious physical injury” exception to § 1915(g). McAlphin v. Toney, 281 F.3d 709 (8th Cir.2002). On remand, defendants moved to dismiss the complaint for failure to exhaust prison remedies, as 42 U.S.C. § 1997e(a) requires. McAlphin opposed that motion and moved to amend his complaint to add additional claims and defendants. The District Court agreed with defendants that McAlphin’s original complaint alleged three separate claims: a" } ]

[ { "docid": "2017466", "title": "", "text": "do not apply to habeas petitions filed under 28 U.S.C. § 2241.” Id. (citing Hicks v. Hood, 203 F.Supp.2d 379, 382 (D.Or.2002)). West involved essentially the same claim presented in the instant-case. The defendants assert that pursuant to Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (an action brought pursuant to 42 U.S.C. § 1983), and pursuant to 42. U.S.C. § 1997e(a), PLRA exhaustion is required in this § 2241 petition because this is a “prison conditions” case. 42 U.S.C. § 1997e(a) states that “no action shall be brought with respect to prison conditions ... by a prisoner ... until such administrative remedies as are available are exhausted.” 18 U.S.C. § 3626(g)(2) defines “prison conditions” as “the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” The defendants contend that in Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), the Supreme Court broadly defined “prison conditions’-’ when it wrote: “The PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circum stances or particular episodes, and whether they allege excessive force or some other wrong.” The defendants do not cite any case that has applied Porter to a § 2241 petition. In Hinton v. Parsons, 73 Fed.Appx. 872, 2003 WL 22089539 (6th Cir.2003), the court considered an action purportedly filed pursuant to 28 U.S.C. § 2241 and 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). In Hinton, the district court determined that the plaintiff did not have a Bivens claim because he did not exhaust administrative remedies. The appellate court, citing Porter v. Nussle, agreed that the district court properly dismissed the Bivens claim for failure to exhaust pursuant to the PLRA’s 42 U.S.C. § 1997e(a). The ruling in Hinton was limited to the Bivens claim; the § 2241 aspect was unaddressed. Only one case" }, { "docid": "4149013", "title": "", "text": "the BOP as a defendant on the FTCA claim. Because there are special venue provisions attendant to an FTCA claim, in the interest of justice, 28 U.S.C. § 1406(a), this action will be transferred to the United States District Court for the Western District of Virginia, where venue is proper for an FTCA claim arising from the events at USP Lee. 28 U.S.C. § 1402(b). B. The Personalr-Capacity Defendants A Bivens action may be maintained against a federal officer only in his personal capacity. Kim v. United States, 618 F.Supp.2d 31, 37 (D.D.C.2009){“Bivens actions may only be brought against federal officials in their personal capacity[.]”) (citing FDIC v. Meyer, 510 U.S. at 486, 114 S.Ct. 996; Drake v. FAA, 291 F.3d 59, 72 (D.C.Cir.2002)). Prisoners’ claims supporting Bivens actions, however, must first be exhausted administratively. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Prison Litigation Reform Act (“PLRA”) provides that [n]o action shall be brought with respect to prison conditions under [42 U.S.C.] section 1983 ..., or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 28 U.S.C. § 1997e. The Supreme Court has interpreted the term “prison conditions” broadly, holding “that the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. at 532, 122 S.Ct. 983. Davis’s constitutional claims brought in this action are about “prison life,” and therefore cannot be maintained unless they have been administratively exhausted. It is undisputed on this record that the BOP maintains an administrative remedy process that was available to Davis and that, prior to initiating this action, Davis did not exhaust any claim supporting the constitutional claims he asserts in his amended complaint. Specifically, he initiated but did not exhaust his claim for retaliatory transfer, and he never initiated any claim for overcrowding at USP Lee or for dangerous prison conditions arising from Mukasey’s" }, { "docid": "3707028", "title": "", "text": "at the administrative level and “to improve the quality of suits that are filed by producing a useful administrative record.” Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Exhaustion is the “general rule” for litigation within Section 1997e(a)’s compass. Porter, 534 U.S. at 525 n. 4, 122 S.Ct. 983. Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process. Booth v. Churner, 532 U.S. 731, 739, 741 & n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). But a prisoner must exhaust only “such administrative remedies as are available,” 42 U.S.C. § 1997e(a), that is, those prison grievance procedures that provide “the possibility of some relief for the action complained of,” Booth, 532 U.S. at 738, 121 S.Ct. 1819. The statutory requirement of an available remedy presupposes authority to take some action in response to a complaint. Booth, 532 U.S. at 736, 121 S.Ct. 1819. Thus, if “the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint,” then a prisoner is left with nothing to exhaust and the PLRA does not prevent the prisoner from bringing his or her claim directly to the district court. Id.; see Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir.2001) (prisoner must exhaust any prison administrative process that “was empowered to consider his complaint and ... .could take some action in response to it”); Snider v. Melindez, 199 F.3d 108, 113 n. 2 (2d Cir.1999) (“If ... the inmate’s suit complains that he was beaten by prison guards, and the institution provides a grievance proceeding for inmate complaints about food ... but none for complaints about beatings,” the inmate would not be required to pursue the griev-anee procedure having “no application whatsoever to the subject matter of his complaint.”). This case is the rare one" }, { "docid": "20440308", "title": "", "text": "Litigation Reform Act of 1995 (“PLRA”), codified at 42 U.S.C. § 1997e(a). In relevant part, the PLRA provides that: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The exhaustion requirement of Section 1997e(a) is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Section 1997e(a) “afford[s] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case,” and, where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Id. at 524-25, 122 S.Ct. 983. A prisoner must complete the administrative process “regardless of the relief offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Thus, a prisoner may file a civil action concerning conditions of confinement under federal law only after he has exhausted his administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001); Sample v. Lappin, 424 F.Supp.2d 187, 190-91 (D.D.C.2006). A A Genuine Issue Exists on Plaintiffs Exhaustion of the DOC Claim Plaintiff alleges that he was sexually assaulted by a DOC corrections officer. Compl. at 7. DOC’s Inmate Grievance Procedure (“IGP”) is set forth in the Inmate Handbook. See District of Columbia Defs’ Mot., Ex. 1 [Dkt. No. 17-2] at 10-11. In a separate section of the Handbook entitled “Prevention and Elimination of Sexual Abuse,” inmates who have been sexually assaulted by an employee or another inmate are directed to “[t]ell a staff member” and/or “[c]all the Confidential Sexual Misconduct Hotline ... from any inmate telephone,” which is monitored by the Office of Internal Affairs (“OIA”). Id. at 15. The OIA then is required to interview the accuser and to “take action,” such as transferring the employee from the accuser’s housing unit and forbidding any contact, placing the accuser in segregated" }, { "docid": "23395660", "title": "", "text": "investí- gation rendered his claims non-grievable under Connecticut Department of Corrections Administrative Directive 9.6. On October 29, 2002, the district court granted the State’s motion for judgment on the pleadings and dismissed Ziemba’s § 1983 action for failure to exhaust. Ziemba filed a timely appeal. DISCUSSION We review a district court’s judgment on the pleadings de novo. See King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d Cir.2002). “In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.” Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999). Under the PLRA, 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under [section 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” As the Supreme Court clarified in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), “the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Id. at 532. Following the Nussle decision, we held that “retaliation claimfs] fit[] within the category of ‘inmate suits about prison life,’ and therefore must be preceded by the exhaustion of state administrative remedies available.” Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir.2002). Accordingly, Ziemba’s claims fall within the purview of the PLRA’s exhaustion requirement. However, on appeal, Ziemba argues that the State should have been estopped from asserting exhaustion as an affirmative defense. Although Ziemba did not use the technical term “estoppel” in the court below, we have reviewed the record on appeal and are satisfied that the argument was effectively presented to the district court when his counsel argued that Ziem-ba’s inability to exhaust “was the direct result of the defendants’ actions ...” It is now well-settled in this circuit that exhaustion under the" }, { "docid": "22688233", "title": "", "text": "prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. PLRA § 803(d) (codified at 42 U.S.C. § 1997e(a) and amending CRIPA § 7(a)). As the Supreme Court explained in Nus-sle: [This] exhaustion provision differs markedly from its predecessor. Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory. All “available” remedies must now be exhausted; those remedies need not meet federal standards, nor must they be “plain, speedy, and effective.” Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all “action [s] ... brought with respect to prison conditions,” whether under § 1983 or “any other Federal law.” 534 U.S. at 524, 122 S.Ct. 983 (citing Booth v. Churner, 532 U.S. 731, 739-41 & n. 5, 121 S.Ct. 1819, 149 L.Ed.2d 958). Several courts have recounted the legislative history of the PLRA, and we need not do so once again. See, e.g., Johnson v. Daley, 339 F.3d 582, 598-99 (7th Cir.2003) (Ripple, J., concurring in the judgment); Nussle v. Willette, 224 F.3d 95, 106 (2d Cir.2000), rev’d sub nom. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Alexander v. Hawk, 159 F.3d 1321, 1324-25 (11th Cir.1998). The Supreme Court summarized the objectives of the exhaustion requirement of the PLRA in Nussle: Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might “filter out some frivolous claims.” And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy." }, { "docid": "6739842", "title": "", "text": "*2 (E.D.N.Y. Oct. 18, 2005). (1) Bivens Claim Section 1983 generally provides relief only in situations where defendants act under color of state law, but Williams’s complaint can be read to bring a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for constitutional violations by federal agents acting in their individual capacities. See Liffiton v. Keuker, 850 F.2d 73, 78 (2d Cir.1988) (stating that § 1983 claims against federal defendants in their individual capacities can be treated as Bivens actions). Sovereign immunity protects the federal government and its agencies from suit, absent a waiver. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). As such, the federal government and its agents are protected from Bivens claims for acting in their official capacities. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994). As the MDC is a part of the BOP, a federal agency, Williams’s claims against the MDC and the federal officers in their official capacities are dismissed on the grounds of sovereign immunity. See id. Defendants argue that Williams’s remaining claims against the federal officers acting in their individual capacities should be dismissed because Williams failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act (“PLRA”). (Def.Mem.4.) Section 1997e(a) of the PLRA states: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a) (2005). The requirement applies to all prison suits, whether they concern ongoing prison conditions or individual episodes that have already occurred, and applies equally to Bivens claims. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (holding that the exhaustion requirement applies to all inmate suits about prison life including allegations of excessive force); Thomas v. Ashcroft, No. 02-CV-5746, 2004 WL 1444735, at *7 (S.D.N.Y.2004) (“[Fjederal prisoners suing" }, { "docid": "22704708", "title": "", "text": "(7th Cir.1999) (“[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment”). But see Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir.1999) (per curiam) (reversing district court’s dismissal for failure to exhaust where “the record demonstrated that [plaintiffs] grievance had been denied ... at the time the court ruled.”). Medina-Claudio, 292 F.3d at 36. The courts that have reached this conclusion place primary reliance on the text of the statute. As the Seventh Circuit explained in Perez: Section 1997e(a) does not say that exhaustion of administrative remedies is required before a case may be decided. It says, rather, that “[n]o action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted.” [The prisoner] violated § 1997e(a) by filing his action. Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit. Perez, 182 F.3d at 534-535 (italics in original). While it is true that requiring dismissal may, in some circumstances, occasion the expenditure of additional resources on the part of the parties and the court, it seems apparent that Congress has made a policy judgment that this concern is outweighed by the advantages of requiring exhaustion prior to the filing of suit. The objectives that Congress sought to achieve in enacting § 1997e(a) were identified by the Supreme Court in Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002): Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Booth, 532 U.S. at 737, 121 S.Ct. 1819. In other instances, the" }, { "docid": "6739843", "title": "", "text": "in their official capacities are dismissed on the grounds of sovereign immunity. See id. Defendants argue that Williams’s remaining claims against the federal officers acting in their individual capacities should be dismissed because Williams failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act (“PLRA”). (Def.Mem.4.) Section 1997e(a) of the PLRA states: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a) (2005). The requirement applies to all prison suits, whether they concern ongoing prison conditions or individual episodes that have already occurred, and applies equally to Bivens claims. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (holding that the exhaustion requirement applies to all inmate suits about prison life including allegations of excessive force); Thomas v. Ashcroft, No. 02-CV-5746, 2004 WL 1444735, at *7 (S.D.N.Y.2004) (“[Fjederal prisoners suing under Bivens must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to initiating a § 1983 suit”). The statute also requires that prisoners seeking monetary damages exhaust available prison remedies regardless of the actual availability of the requested damages through the administrative process. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (holding that Congress has made it clear that exhaustion is required even if the plaintiff seeks damages not available as relief in the administrative procedure). The exhaustion requirement is not jurisdictional in nature, but is an affirmative defense. McCoy v. Goord, 255 F.Supp.2d 233, 247 (S.D.N.Y.2003). “ ‘An affirmative defense may be raised by a ... motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.’ ” Brito v. Vargas, No. 01-CV-7753, 2003 WL 21391676, at *2 (E.D.N.Y. June 16, 2003) (quoting McCoy, 255 F.Supp.2d at 249.). The failure of a complaint to show that the exhaustion requirement has been" }, { "docid": "13993113", "title": "", "text": "of summary judgment de novo. McCoy v. Gilbert, 270 F.3d 503, 508 (7th Cir.2001). “Ordinarily, plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies before filing suit in court.” Porter v. Nussle, 534 U.S. 516, 523, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In 1996, however, as part of the Prison Litigation Reform Act (“PLRA”), Congress made exhaustion a mandatory prerequisite for a prisoner’s suit concerning the conditions of his confinement brought under section 1983. Porter, 534 U.S. at 524, 122 S.Ct. 983. The PLRA’s exhaustion provision now reads: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administra tive remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,” Porter, 534 U.S. at 532, 122 S.Ct. 983, and “an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). An inmate’s perception that exhaustion would be futile does not excuse him from the exhaustion requirement. Id.; Perez v. Wisc. Dep’t of Corrections, 182 F.3d 532 (7th Cir.1999). “Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.” Porter, 534 U.S. at 524, 122 S.Ct. 983 (citing Booth, 532 U.S. at 741, 121 S.Ct. 1819); see also Riccardo v. Rausch, 375 F.3d 521, 523 (7th Cir.2004). The Illinois Department of Corrections has an established grievance process. See 20 Ill. Admin. Code §§ 504.800 et seq. An inmate can submit a written grievance to a designated grievance officer, who submits his recommendation to the institution warden. 20 Ill. Admin. Code §§ 504.810, 504.830. The warden “shall advise the offender of the decision in writing within 2 months after receipt of the written grievance, where reasonably feasible.” 20 Ill. Admin. Code § 504.830(d). Alternatively, an inmate can" }, { "docid": "15603865", "title": "", "text": "amend the complaint and dismiss the claims against Harmon. After receiving Kozohorsky’s motion to amend, a deputy clerk for the United States District Court for the Eastern District of Arkansas struck through the title of the motion to amend and renamed it “Supplement to the Objections,” and then docketed the motion under this new title. The deputy clerk made the title change to the motion at the request of one of the District Court’s law clerks. On March 5, 2002, without explicitly ruling on Kozohorsky’s motion to amend his complaint, the District Court adopted the findings and recommendations of the Magistrate Judge and dismissed Kozohorsky’s complaint without prejudice. This appeal followed. II. Kozohorsky first argues that the District Court erred in dismissing his complaint for failure to exhaust administrative remedies with respect to his claims against Harmon. We review the District Court’s findings of fact for clear error and conclusions of law de novo. See Jones v. Norris, 310 F.3d 610, 612 (8th Cir.2002) (per curiam). Under § 1997e(a), a prisoner cannot bring a § 1983 action with respect to prison conditions “until such administrative remedies as are available are exhausted.” See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). We have previously held, as is the case here, that “[w]hen multiple prison condition claims have been joined ... the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.” Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) (emphasis added). Because Kozohorsky did not exhaust his administrative remedies on his failure-to-supervise claim against Harmon, he failed to exhaust all available administrative remedies as to all of his claims. See id. at 885-86 (holding dismissal proper where at least some of plaintiffs claims were unexhausted when the district court ruled). Despite this defect in Kozohorsky’s complaint, we believe the District Court abused its discretion by implicitly denying his motion to amend the complaint. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir.2002) (noting abuse-of-discretion standard applies to a" }, { "docid": "22185814", "title": "", "text": "exhaustion had occurred. Therefore, because the inmate exhausted his remedies prior to the district courts’ ruling on the motion to dismiss, the motions were denied. Appellants argue on appeal that the district courts erred because 42 U.S.C. § 1997e(a) requires that an inmate exhaust all available administrative remedies regarding the allegations in his complaint prior to filing suit. II. DISCUSSION We review the district courts’ findings of fact under the clearly erroneous standard and the conclusions of law de novo. Walker v. Maschner, 270 F.3d 573, 576 (8th Cir.2001). The complaints filed by Johnson and Fudge are governed by 42 U.S.C. § 1997e(a) as amended by the Prison Litigation Reform Act of 1995, Pub. L. No. 104-34, 110 Stat. 1321-71 (PLRA), which addresses actions involving prison conditions. Section 1997e(a) now provides that “[n]o action shall be brought with respect to prison conditions under [federal law] by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before al lowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might filter out some frivolous claims. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (internal quotations and citations omitted). Faced with nearly identical facts in Williams v. Norris, this circuit previously held that it is improper to dismiss without prejudice when available prison remedies are exhausted “at the time the [district] court ruled.” 176 F.3d 1089, 1090 (8th Cir.1999). Appellants dispute the decision in Williams arguing it is contrary to the objectives and plain language of section 1997e(a) and no longer tenable given the" }, { "docid": "16272839", "title": "", "text": "are exhausted.” 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As we explained in Jemigan, “[e]ven where the ‘available’ remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.” 304 F.3d at 1032 (citing Booth v. Churner, 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Moreover, we have held that “the PLRA contains a total exhaustion requirement, and ... the presence of unexhausted claims in [prisoner's complaint require[s][a] district court to dismiss his [or her] action in its entirety without prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir.2004); see also Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) (“When multiple prison condition claims have been joined ... § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.”). To exhaust his or her administrative remedies, an inmate in a federal prison must complete a four-step process before filing suit. This process is laid out in the Code of Federal Regulations, as well as a parallel Bureau of Prisons (“BOP”) Program Statement. See generally 28 C.F.R. § 542 (2004); BOP Program Statement 1330.13 (2002). First, an inmate usually must attempt to informally resolve his or her concerns with prison staff. 28 C.F.R. § 542.13. If this attempt fails, an inmate must submit a formal written Administrative Remedy Request within twenty days of the date on which the basis for the Request occurred. Id. § 542.14(a). If the Request does not provide satisfactory relief, an inmate must appeal the resolution of his or her Request to the appropriate BOP Regional Director within twenty days. Id. § 542.15(a). Finally, if an inmate disagrees with the Regional Director’s decision, the inmate must appeal the decision to the BOP’s General Counsel within thirty days. Id. § 542.15(a). We have held that if an inmate does not comply with the time limits laid out in 28 C.F.R. § 542, he or she has not properly exhausted" }, { "docid": "9769015", "title": "", "text": "the Defendants violated their civil rights. After filing an answer, the Defendants moved for summary judgment. The district court dismissed Alexander’s use-of-excessive-force claim because he failed to exhaust his administrative remedies. Regarding Alexander’s and Carroll’s conditions-of-confinement claims, the district court granted the Defendants’ motion for summary judgment, after finding that Alexander’s and Carroll’s Eighth Amendment rights had not been violated and that they were not entitled to any relief as a matter of law. II. DISCUSSION A. Alexander’s § 1988 Excessive Force Claim The district court dismissed Alexander’s excessive force claim, finding that he did not properly exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). We review de novo a district court’s dismissal of a § 1983 suit for failure to exhaust administrative remedies. Days v. Johnson, 322 F.3d 863, 866 (5th Cir.2003). The Prison Litigation Reform Act, § 1997e(a), declares: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Exhaustion is mandatory for “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Alexander argues on appeal that the Detention Facility’s grievance procedures were inadequate. But it is not for the courts to inquire whether administrative procedures “satisfy ‘minimum acceptable standards’ of fairness and effectiveness.” Booth v. Churner, 532 U.S. 731, 740 n. 5, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Under § 1997e(a), a prisoner must exhaust such administrative remedies as are “available,” whatever they may be. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001). If a prisoner has not exhausted all available administrative remedies, dismissal is appropriate. See id. at 359. Alexander also argues that the grievance procedures were not “available” to him and that he made reasonable attempts to comply with them. The evidence, however, shows that grievance procedures were available" }, { "docid": "12500580", "title": "", "text": "exhausted.” 42 U.S.C. § 1997e(a). “‘The PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.’ ” Sanders v. Williams, No. CIV 08-0895 JB/ WPL, 2010 WL 1631767, at *7 (D.N.M. March 20, 2010)(Browning, J.)(quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory. All available remedies must now be exhausted; those remedies need not meet federal standards, nor must they, be plain, speedy, and effective. Even when the prisoner seeks relief not .available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. And unlike the previous-provision, which encompassed only § 1983 suits, exhaustion is now required for all actions] ... brought with respect to prison conditions, whether under § 1983 or any other Federal law. Porter v, Nussle, 534 U.S. at 524, 122 S.Ct. 983 (citations omitted)(internal quotation marks omitted). Congress enacted the exhaustion provisions, intending to reduce the quantity and improve the quality of prisoner suits.... Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might filter out some frivolous claims. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. Porter v. Nussle, 534 U.S. at 524-25, 122 S.Ct. 983. A prisoner may not satisfy the PLRA’s exhaustion requirements “by filing an untimely or otherwise procedurally defective administrative grievance or appeal.” Woodford v. Ngo, 548 U.S. 81, 83-84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “[Ejxhaustion requirements are designed to ... give the agency a fair and full opportunity to adjudicate their claims.” Woodford v. Ngo, 548 U.S. at 90, 126 S.Ct. 2378. “[P]roper exhaustion of administrative remedies" }, { "docid": "16272838", "title": "", "text": "for the Western District of Oklahoma. On December 16, 2002, the district court referred this case to a magistrate judge for initial proceedings. On September 2, 2003, Defendants moved to dismiss the suit. On February 2, 2004, the magistrate judge recommended that the case be dismissed without prejudice based on Plaintiffs failure to exhaust his administrative remedies. On March 30, 2004, the district court adopted the magistrate judge’s report and recommendation over Plaintiffs objections and dismissed the case. On August 9, 2004, Plaintiff filed a notice of appeal. II. Analysis A. Plaintiffs Failure to Exhaust Administrative Remedies We review de novo a district court’s dismissal of an inmate’s suit for failure to exhaust his or her administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002). The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As we explained in Jemigan, “[e]ven where the ‘available’ remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.” 304 F.3d at 1032 (citing Booth v. Churner, 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Moreover, we have held that “the PLRA contains a total exhaustion requirement, and ... the presence of unexhausted claims in [prisoner's complaint require[s][a] district court to dismiss his [or her] action in its entirety without prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir.2004); see also Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) (“When multiple prison condition claims have been joined ... § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.”). To exhaust his or her administrative remedies, an inmate in a federal prison must complete a four-step" }, { "docid": "22893909", "title": "", "text": "U.S.C. § 1292(b). II.ISSUE Whether the PLRA’s exhaustion requirement, codified in 42 U.S.C. § 1997e(a), requires prisoners to meet timely the deadlines or the good cause standard of Georgia’s administrative grievance procedures before filing a federal claim. III.STANDARD OF REVIEW This court reviews de novo a district court’s interpretation and application of 42 U.S.C. § 1997e(a)’s exhaustion requirement. Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir.2000). IV.DISCUSSION Section 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). This provision entirely eliminates judicial discretion and instead mandates strict exhaustion, “irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 1825 n. 6, 149 L.Ed.2d 958 (2001). Congress intended to afford prison officials time to address grievances internally before allowing a prisoner to initiate a federal lawsuit. See Porter, 534 U.S. at 525, 122 S.Ct. at 988. Thus, whatever the precise contours of what exhaustion requires, it plainly is procedural in nature: While the modifier “available” requires the possibility of some relief for the action complained of ..., the word “exhausted” has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered .... [0]ne “exhausts” processes, not forms of relief, and the statute provides that one must. Booth, 532 U.S. at 738-39, 121 S.Ct. at 1824. “In other words, the modifier ‘available’ in the PLRA means that inmates must exhaust administrative remedies so long as there is the possibility of at least some kind of relief.” Ross v. County of Bernalillo, 365 F.3d" }, { "docid": "22221644", "title": "", "text": "did not require plaintiffs to exhaust claims of retaliation, because such claims involved “individual ized retaliatory actions against an inmate” rather than “claims brought ‘with respect to prison conditions.’ ” Giano v. Goord, 250 F.3d 146, 150 (2d Cir.2001). The Supreme Court subsequently ruled that retaliation claims were subject to the PLRA’s exhaustion requirement, see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), and thereafter, on remand, the district court (Siragusa, /.), in an order dated April 1, 2002, again dismissed Giano’s complaint for failure to exhaust. Giano filed a timely Notice of Appeal. II. Discussion The PLRA, 42 U.S.C. § 1997e(a), provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The PLRA’s exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Further, as long as other forms of relief are obtainable through administrative channels, the provision is applicable even to suits seeking relief, such as money damages, that may not be available in prison administrative proceedings. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). We have previously held that administrative exhaustion is not a jurisdictional predicate, Richardson v. Goord, 347 F.3d 431 (2d Cir.2003), and that plaintiffs are entitled to notice and an opportunity to be heard before a court can dismiss their complaints for failure to exhaust administrative remedies, Snider v. Melindez, 199 F.3d 108 (2d Cir.1999). Moreover, failure to exhaust is an affirmative defense, see Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.1999), and defendants’ actions “may ... estop[ ] the State from asserting the exhaustion defense,” Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004). Further, “special circumstances” may excuse a prisoner’s failure to exhaust, but dismissal" }, { "docid": "15603866", "title": "", "text": "1983 action with respect to prison conditions “until such administrative remedies as are available are exhausted.” See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). We have previously held, as is the case here, that “[w]hen multiple prison condition claims have been joined ... the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.” Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) (emphasis added). Because Kozohorsky did not exhaust his administrative remedies on his failure-to-supervise claim against Harmon, he failed to exhaust all available administrative remedies as to all of his claims. See id. at 885-86 (holding dismissal proper where at least some of plaintiffs claims were unexhausted when the district court ruled). Despite this defect in Kozohorsky’s complaint, we believe the District Court abused its discretion by implicitly denying his motion to amend the complaint. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir.2002) (noting abuse-of-discretion standard applies to a denial of a motion for leave to amend). Kozohorsky’s request to amend his complaint and dismiss Harmon would have cured the defect necessitating the dismissal. Our decision here is guided by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), which addressed the exhaustion requirements for habeas corpus petitions. In that decision, the Supreme Court adopted “a total exhaustion rule,” which required district courts to dismiss “mixed petitions” (i.e., petitions that contain both exhausted and unexhausted claims). Id. at 510, 522, 102 S.Ct. 1198. The Supreme Court stated that after a district court dismisses such a mixed petition, the plaintiff could then return to state court to exhaust his claims or file an amended petition in federal court including only exhausted claims. Id. at 510, 102 S.Ct. 1198. We think that the rule permitting a plaintiff to file an amended petition, which includes only exhausted claims, is applicable here. In fact, we have previously approved this practice in prison condition cases. See Thornton v. Phillips County, Ark., 240 F.3d 728, 729" }, { "docid": "3707027", "title": "", "text": "(denying plaintiff Daniel Siler’s motion for injunction because he “failed to note an appeal in this action”). On appeal, Kaemmerling argues that the district court erred in dismissing his case because the PLRA’s exhaustion requirement does not apply and that it erred in denying his motion for a preliminary injunction. The BOP defends the district court’s PLRA decision and further argues that, even if Kaemmerling is not required to exhaust administrative remedies, we should dismiss his complaint for failure to state a claim. II The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement affords prison officials time and opportunity to resolve complaints concerning the exercise of their responsibilities before allowing the initiation of a federal case. Exhaustion thus “has the potential to reduce the number of inmate suits” by resolving problems at the administrative level and “to improve the quality of suits that are filed by producing a useful administrative record.” Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Exhaustion is the “general rule” for litigation within Section 1997e(a)’s compass. Porter, 534 U.S. at 525 n. 4, 122 S.Ct. 983. Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process. Booth v. Churner, 532 U.S. 731, 739, 741 & n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). But a prisoner must exhaust only “such administrative remedies as are available,” 42 U.S.C. § 1997e(a), that is, those prison grievance procedures that provide “the possibility of some relief for the action complained of,” Booth, 532 U.S. at 738, 121 S.Ct. 1819. The statutory requirement of an available remedy presupposes" } ]

[ { "docid": "4156294", "title": "", "text": "legal rulings de novo. See Traina v. Whitney National Bank, 109 F.3d 244, 246 (5th Cir.1997). B. § 1822(b)(2) 1. The Nature of the Tara Colony Claim Under Texas state law, a homeowners association’s claim on an unpaid maintenance assessment is secured by a lien running with the land giving the association the right to foreclose on the residence to enforce unpaid maintenance fees or other costs. See Inwood North Homeowner’s Assoc., Inc. v. Harris, 736 S.W.2d 632, 635-36 (Tex.1987). “A restrictive covenant that touches and concerns the land is binding on subsequent purchasers of the property.” In re Perry, 235 B.R. 603, 605 (S.D.Tex.1999)(citing Inwood, 736 S.W.2d at 635.). The Tara Colony lien is a binding subordinate security interest in the debtor’s primary residence. 2. The Governing Bankruptcy Code Sections Bartee seeks to reorganize his debts under Chapter 13 of the Bankruptcy Code. Chapter 13 was designed to facilitate the adjustment of the debts of individuals whose regular income allows them to fund a flexible repayment plan. See Lawrence P. King, et al„ Collier on BANKRUPTCY § 1322.01 (15th ed.1999) (hereinafter “Collier on BanKruptcy”). The great benefit to a Chapter 13 bankruptcy is that a debtor can preserve existing assets, all the while granting creditors a ratable recovery from future income unavailable under Chapter 7 liquidation. See Foster v. Heitkamp (In re Foster), 670 F.2d 478, 483 (5th Cir.1982); Kitchens v. Georgia Railroad Bank and Trust Co., 702 F.2d 885, 887 (11th Cir.1983). Following the completion of all payments specified under the plan, the debtor is granted a liberal discharge. See id.; see also 11 U.S.C. § 1328. With these benefits in mind, “courts have repeatedly emphasized Congress’s preference that individual debtors use Chapter 13 instead of Chapter 7.” In re McDonald, 205 F.3d 606, 614 (3d Cir.2000). The resolution of this case rests upon the interaction of two sections of the Bankruptcy Code as applied to a junior lien unsecured by any supporting value in the collateral home. The first, § 506(a), describes the extent to which an allowed claim is to be treated as a secured claim" } ]

[ { "docid": "3826071", "title": "", "text": "not receive a discharge in a subsequent chapter 13 case if they received a discharge in a chapter 7 case filed in the preceding four years, or in a chapter 13 case filed in the preceding two years. However, the language of the statute is somewhat unclear concerning how these time limits are to be measured. While there is no binding authority in this Circuit yet, those appellate courts that have interpreted this new provision generally agree that the starting point for calculating the time limitation on eligibility for a discharge in § 1328(f) is the date of the filing of the prior petition, and not the date of discharge in the prior case. See Carroll v. Sanders (In re Sanders), 551 F.3d 397, 404 (6th Cir.2008); Branigan v. Bateman (In re Bateman), 515 F.3d 272, 280 (4th Cir.2008); Gagne v. Fessenden (In re Gagne), 394 B.R. 219, 230 (1st Cir. BAP 2008). Those decisions carefully parse the language of § 1328(f) and reach identical conclusions. This Court agrees with their thoughtful analysis. Debtors filed their chapter 7 case on November 24, 2004, and they received a discharge in that case. As a result, under § 1328(f), Debtors were not eligible to receive a discharge in any chapter 13 case commenced prior to November 25, 2008. Therefore, Debtors were prohibited from receiving a discharge in the Feb. 2008 case. However, § 1328(f) did not prevent them from receiving a discharge in the Dec. 2008 case. Debtors concede, and the Court accepts, that it was because they were not eligible for a discharge in the Feb. 2008 case that they sought to dismiss it, and then refiled a new chapter 13 case a few days later. 2. Who May be a Debtor Under § 109(g). The next issue for consideration in this case is whether Debtors were eligible to be debtors in the Dec. 2008 case. Section 109(g) is pertinent to that issue, and provides: Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a" }, { "docid": "6690025", "title": "", "text": "debtor is ineligible to file at all. This Court agrees with those other courts that have concluded that the unavailability of a discharge is not an issue of eligibility to file a Chapter 13 case. See, e.g., In re Lewis, 339 B.R. 814 (Bankr.S.D.Ga.2006); In re Bateman, 515 F.3d 272 (4th Cir.2008). The Trustee cites to In re Jarvis, 390 B.R. 600 (Bankr.C.D.U1.2008), to In re King, 290 B.R. 641 (Bankr.C.D.Ill.2003), and In re Akram, 259 B.R. 371 (Bankr. C.D.Ca.2001) in support of his argument that a discharge is required. Those cases are important cases to the circumstance when a debtor is not eligible for a discharge, but they actually support the proposition that eligibility for a discharge is not an eligibility prerequisite to being able to file a Chapter 13 case, whether under 11 U.S.C. § 109 or otherwise. Rather, they speak to the relief a debtor can seek in a Chapter 13 when no discharge is available, most commonly in what is colloquially called a “Chapter 20” case. That is, the debtor has received a discharge in a Chapter 7 case, then files a Chapter 13 within the time period set in 11 U.S.C § 1328(f) prohibiting a further discharge. The instant case is not a “Chapter 20”, and the Court is not aware of any reason why this debtor would not be eligible for a discharge after completion of her plan. If she does not complete her plan and earn the resulting discharge, and her case is at some point dismissed, all her less than fully paid obligations spring back as on-going liabilities, with all accruals under applicable non-bankruptcy law of interest and the like, as if no bankruptcy had been filed. In re Pardee, 218 B.R. 916 (9th Cir. BAP 1998); In re Lilly, 378 B.R. 232 CBankr.C.D.Ill.2007). All Chapter 13 cases are required to have been filed in good faith (§ 1325(a)(7)), and any plan must be proposed in good faith to be eligible for confirmation (§ 1325(a)(3)). To the extent a debtor seeks to use a Chapter 13 plan to obtain some form of" }, { "docid": "19767757", "title": "", "text": "in mind, § 1328(f)(l)’s pieces fit sensibly together, each phrase modifying the one that comes before it and each phrase having an independent task to do. The “in a case filed under” phrase that begins subsection (f)(1) modifies “received a discharge,” and the phrase that frames the four-year window — “during the 4-year period preceding [the second petition]” — modifies the “filed under” fragment that comes immediately before it. 11 U.S.C. § 1328(f)(1); ef. Branigan v. Bateman (In re Bateman), 515 F.3d 272, 277-78 & n. 8 (4th Cir.2008) (concluding that reading the nearly identical language of § 1328(f)(2) the same way “gives effect to the logical sequence of the language used,” because under this reading “[a]ll words are given effect” and “[n]o punctuation needs to be added or deleted” to make sense of the statute) (internal quotation marks omitted). The upshot is this: A debtor may not receive a discharge under chapter 13 if he already received a discharge under chapter 7 and the two cases were filed less than four years apart. Carroll’s contrary construction — that the four-year window begins on the date of the first discharge — requires reading “during the 4-year period” as reaching back to the phrase “received a discharge” in subsection (f)’s opening clause. But she points to nothing in the statute to rebut the last-antecedent presumption. Congress no doubt could have worked around this grammatical rule had it wished, see Bate-man, 515 F.3d at 278 & n. 8, but we see nothing in the section to justify dispensing with this default rule of interpretation. Besides honoring the last-antecedent rule, this construction of the statute has another virtue: It avoids reading the word “filed” out of the statute. Had Congress meant to adopt a discharge-to-filing rule, it could have satisfied that objective “by omitting the word ‘filed’ entirely” from the provision. Id. at 278. The clipped phrase (“a case under”) would perform the very function that Carroll contends “in a case filed under” accomplishes: denoting the chapter under which the debtor filed his petition. Throughout the Bankruptcy Code, Congress has deployed the “a" }, { "docid": "3826070", "title": "", "text": "address each of these sections in turn. 1. Serial Filings and § 1328(f). The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”) included several new provisions intended to curtail perceived abuses of the bankruptcy system. One of the new additions to the Code was § 1328(f), which provides: Notwithstanding subsections (a) and (b), the court shall not grant a discharge of all debts provided for in the plan or disallowed under section 502, if the debt- or has received a discharge— (1) in a case filed under chapter 7, 11, or 12 of this title during the 4-year period preceding the date of the order for relief under this chapter, or (2) in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order. 11 U.S.C. § 1328(f). There is little doubt that it was this statute that prompted Debtors to dismiss the Feb. 2008 case, only to refile another chapter 13 case a few days later. Section 1328(f) provides, in part, that debtors may not receive a discharge in a subsequent chapter 13 case if they received a discharge in a chapter 7 case filed in the preceding four years, or in a chapter 13 case filed in the preceding two years. However, the language of the statute is somewhat unclear concerning how these time limits are to be measured. While there is no binding authority in this Circuit yet, those appellate courts that have interpreted this new provision generally agree that the starting point for calculating the time limitation on eligibility for a discharge in § 1328(f) is the date of the filing of the prior petition, and not the date of discharge in the prior case. See Carroll v. Sanders (In re Sanders), 551 F.3d 397, 404 (6th Cir.2008); Branigan v. Bateman (In re Bateman), 515 F.3d 272, 280 (4th Cir.2008); Gagne v. Fessenden (In re Gagne), 394 B.R. 219, 230 (1st Cir. BAP 2008). Those decisions carefully parse the language of § 1328(f) and reach identical conclusions. This Court agrees with their thoughtful analysis. Debtors filed" }, { "docid": "11852331", "title": "", "text": "ME Case No. 04-10881 Date Filed: 05/03/2004 . The case is as follows: Mrs. Gagne District of Maine Bangor, ME Case No. 00-11197 Date Filed: 07/17/2000 . In the Motion, the Trustee listed the following cases: Carrie Smith Case No. 88-10305 Carrie Smith Gagne Case No. 00-11197 Pierre Gagne Case No. 02-10966 Chapter 13 Discharged: May 18, 2006 Carrie Smith Gagne Case No. 04-10881 Chapter 7 Discharged: August 23, 2004 . The Debtors were permitted to appear tele-phonically. The Panel permitted Mrs. Gagne to speak for the Debtors and the Trustee did not object. . In both subsections, the phrase provides, \"in a case commenced within [] years before the date of the filing of the petition....” . The Debtors did not file a copy of the transcript memorializing the hearing on the Motion. The Panel has ruled that the lack of a transcript is fatal to an appeal where \"the Panel is unable to determine the legal foundation of the bankruptcy court's rulings, or whether the bankruptcy court made any initial oral findings and rulings.” Kristan v. Patriot Growth Fund, L.P., 378 B.R. 417 (1st Cir. BAP 2006). In this case, however, the parties agree that the issues they raised are not factually dependant and, as such, the lack of a transcript is not fatal to the appeal. See, e.g., U.S. v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1113-14 (1st Cir. 1975). Indeed, the bankruptcy court referred to the issue as one of statutory interpretation in the Stay Order. . The Fourth Circuit is the only circuit court to rule on the issue. The Seventh Circuit made reference to a ban on a second discharge based upon a discharge to filing date without engaging in an analysis of the statute. In re Sidebottom, 430 F.3d 893, 897 n. 1 (7th Cir.2005). The Fourth Circuit considered that footnote dicta. In re Bateman, 515 F.3d at 280 n. 11. . The second issue the Fourth Circuit addressed was whether Bateman, who could not obtain a discharge based upon the dates of his filing, was eligible to be a debtor." }, { "docid": "11852314", "title": "", "text": "not dispute the facts and the only issues before the Panel involve statutory interpretation. As such, the decision is subject to de novo review. See Khan v. Bankowski (In re Khan), 375 B.R. 5, 9 (1st Cir. BAP 2007). DISCUSSION Section 1328(f) was one of the amendments to the Bankruptcy Code included in BAPCPA. The statute provides: (f) Notwithstanding subsections (a) and (b), the court shall not grant a discharge of all debts provided for in the plan or disallowed under section 502, if the debt- or has received a discharge— (1) in a case filed under chapter 7, 11, or 12 of this title during the 4-year period preceding the date of the order for relief under this chapter, or 12) in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order. 11 U.S.C. § 1328(f). The first issue the Panel must address with respect to the statute is the proper interpretation of the phrase “in a case filed under chapter 13 of this title.” Earlier this year, the Fourth Circuit issued a decision analyzing the statute in a consolidated appeal. Branigan v. Batemen (In re Bateman), 515 F.3d 272 (4th Cir.2008). In those cases, the Chapter 13 trustee had filed motions to dismiss on grounds that the debtors were not entitled to discharges under § 1328(f). The Fourth Circuit wrote that to resolve the matter “we must decide whether the phrase ‘during the 2-year period preceding the date of such order’ in § 1328(f)(2) modifies the phrase ‘received a discharge’ or the phrase ‘filed under chapter 13 of this title.’ ” Id. at 277. Citing Lamie v. United States Trustee, 540 U.S. at 534, 124 S.Ct. 1023, the Fourth Circuit explained that the plain language of the statute dictated calculating the applicable time periods from date of filing to date of filing. 515 F.3d at 277. Such a conclusion, it stated, “is buttressed by the doctrine of the last antecedent, which teaches that ‘a limiting clause or phrase ... should ordinarily be read as modifying only the noun or" }, { "docid": "2282136", "title": "", "text": "4-year period preceding the date of the order for relief under this chapter, or (2) in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order. 11 U.S.C. § 1328(f). Courts considering the impact of new § 1328(f) have held that the provision does not restrict a debtor’s eligibility to file a Chapter 13 case and obtain confirmation of a plan which otherwise complies with the Code. In re Bateman, 515 F.3d 272 (4th Cir.2008); In re Lewis, 339 B.R. 814 (Bankr.S.D.Ga.2006); In re McGehee, 342 B.R. 256 (Bankr.W.D.Ky.2006); In re Sanders, 368 B.R. 634 (Bankr.E.D.Mich.2007). Nevertheless, these no-discharge Chapter 13 cases raise issues of the extent to which relief can be granted in the absence of a discharge, and whether the cases are filed in good faith. See, e.g., In re Lilly, 378 B.R. 232 (Bankr.C.D.Ill.2007) (limiting the permanent effect of using a Till interest rate rather than the contract interest rate in a no-discharge case); Lewis, 339 B.R. at 817 (availability of a discharge is a factor in determining good faith of a serial filing). The extent of the relief available to a debtor in a no-discharge Chapter 13 case was examined in Lilly in the context of whether the modification of a creditor’s interest rate was permanent and binding after the completion of plan payments. The Lilly court found that, although a debtor could obtain confirmation of a no-discharge Chapter 13 plan which modified a creditor’s interest rate from the contract rate for purposes of calculating plan payments, such modification was not permanent and, in the absence of a discharge, the collateral securing the debt would still be encumbered by the balance due on the debt calculated at the contract rate. Lilly, 378 B.R. at 237. See also In re Williams, 367 B.R. 625 (Bankr.N.D.Ill.2007) (confirmation denied in no-discharge Chapter 13 case which proposed to modify interest rate). Contra In re Hopkins, 371 B.R. 324 (Bankr.N.D.Ill.2007) (confirmation allowed in no-discharge Chapter 13 case which proposed to satisfy secured claim by paying less than contract rate interest). The Lilly" }, { "docid": "4343896", "title": "", "text": "three years or longer, on the one hand, and plans running less than three years, on the other hand, in Section 1325(b). There is nothing in the Bankruptcy Code to indicate that Congress also did not distinguish between plans completed in two years or less, compared to plans completed in three years or more, in Section 1328(f)(2). Graves II, 2007 Bankr.LEXIS 1274, at *19-*20. Indeed, as the Chapter 13 Trustee concedes, “many [Chapter 13] plans are predicated on a refinancing or sale of estate property in less than three years.” (Appellant’s Supp. Br. at 6 n. 13.) Likewise, although Collier on Bankruptcy has recognized that, under a “filing date to filing date” interpretation, § 1328(f)(2) “should rarely be applicable,” it nevertheless believes such an interpretation flows from the plain language of the statute: It might be suggested that Congress really intended that the four-year period run from the date of the discharge in the prior case, but such a reading of the subsection does violence to its plain language, which links the time period to the filing of the prior case in each subpara-graph. ... [The reading urged by the Chapter 13 Trustee] would fly in the face of Congress’ oft-expresses[sic] policy of encouraging chapter 13 rather than chapter 7, punishing only those who successfully completed chapter 13 plans and received a discharge. 8 Collier on Bankruptcy P 1328.06[2] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2007) [hereinafter Collier ]. Finally, courts have “repeatedly emphasized Congress’s preference that individual debtors use Chapter 13 instead of Chapter 7.” In re McDonald, 205 F.3d 606, 614 (3d Cir.2000); In re Bartee, 212 F.3d 277, 284 (5th Cir.2000). The “filing date to filing date” interpretation we adopt today is in keeping with this preference: a debtor who files a new Chapter 13 petition after receiving a discharge in a typical three-to-five-year Chapter 13 plan would never be prohibited under § 1328(f)(2) from receiving a discharge, but a debtor who obtained a Chapter 13 discharge in a case filed within the last two years would be prohibited from receiving a discharge," }, { "docid": "2865348", "title": "", "text": "more than “under.” Bateman, 515 F.3d at 278. Section 1328(f)(2) provides that “the court shall not grant a discharge ... if the debtor received a discharge in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order.” 11 U.S.C.A. § 1328(f)(2) (West 2009). In Bateman, the Chapter 13 trustee argued “that § 1328(f)(2) prohibits a discharge in a Chapter 13 case filed within two years of the date of discharge in the prior bankruptcy.” Id. at 276 (emphasis added). The trustee’s “discharge date to filing date” interpretation requires that the phrase “during the 2-year period preceding the date of such order” modify “received a discharge” instead of “filed under ...” Id. at 277. The Fourth Circuit, however, declined to accept the Chapter 13 trustee’s argument. Id. at 278. The court found that the trustee’s interpretation rendered “filed” superfluous, “believ[ing] that when Congress used the phrase ‘filed under,’ it meant ‘filed under’ and not just ‘under.’ ” Id. It ultimately held “that under § 1328(f)[ (2) ], a debtor may not obtain a Chapter 13 discharge in a bankruptcy filed within two years of filing an earlier Chapter 13 petition that resulted in a discharge.” Id. at 280 (emphasis added). “[Fjiled” in § 1328(f)(2) therefore refers to the initial act of filing a bankruptcy petition. In the case at bar, if “a case filed by an individual debtor under this chapter” in § 707(b)(1) means any individual Chapter 7 case, the word “filed” is superfluous. Both cases initially filed in, and those converted to, Chapter 7 are cases “under” that chapter. This Court may not, however, interpret “filed ... under” to mean simply “under.” The term “filed” in § 707(b)(1) should be ascribed the same meaning that the Fourth Circuit gave it in § 1328(f)(2). The phrase “filed by an individual debtor under this chapter” in § 707(b)(1) therefore refers to an individual’s initial filing of a Chapter 7 petition and does not include conversion to Chapter 7 from another chapter of the Bankruptcy Code. 11. Literal Application of Section 707(b)(1) Does" }, { "docid": "11852332", "title": "", "text": "rulings.” Kristan v. Patriot Growth Fund, L.P., 378 B.R. 417 (1st Cir. BAP 2006). In this case, however, the parties agree that the issues they raised are not factually dependant and, as such, the lack of a transcript is not fatal to the appeal. See, e.g., U.S. v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1113-14 (1st Cir. 1975). Indeed, the bankruptcy court referred to the issue as one of statutory interpretation in the Stay Order. . The Fourth Circuit is the only circuit court to rule on the issue. The Seventh Circuit made reference to a ban on a second discharge based upon a discharge to filing date without engaging in an analysis of the statute. In re Sidebottom, 430 F.3d 893, 897 n. 1 (7th Cir.2005). The Fourth Circuit considered that footnote dicta. In re Bateman, 515 F.3d at 280 n. 11. . The second issue the Fourth Circuit addressed was whether Bateman, who could not obtain a discharge based upon the dates of his filing, was eligible to be a debtor. The court concluded that § 1328 was not an eligibility statute and that the debtor could propose and confirm a plan. In re Bateman, 515 F.3d at 281; accord In re Brandford, 386 B.R. 742, 748 n. 6 (Bankr.N.D.Ind.2008); In re McGehee, 342 B.R. 256, 258 (Bankr.W.D.Ky.2006). . The court concluded that the rule of the last antecedent was inapplicable as the \"dominant purpose of the statute requires otherwise. ...” Id. at 640. . One court explained the intention of the drafters as follows: \"it is clearly the primary intent of § 1328(f)(1) to preclude the filing of a '20' [a Chapter 7 followed by a Chapter 13], ‘24’ [a Chapter 11 followed by a Chapter 13] and a ‘25’ [a Chapter 12 followed by a Chapter 13] for a more extended period of time than a '26' [back to back Chapter 13s].” In re Grydzuk, 353 B.R. 564, 568 (Bankr.N.D.Ind. 2006). . As one court describes the legislative history: So, despite the fact that subparagraphs (1) and (2) of § 1328(f) use identical operative" }, { "docid": "4343897", "title": "", "text": "the filing of the prior case in each subpara-graph. ... [The reading urged by the Chapter 13 Trustee] would fly in the face of Congress’ oft-expresses[sic] policy of encouraging chapter 13 rather than chapter 7, punishing only those who successfully completed chapter 13 plans and received a discharge. 8 Collier on Bankruptcy P 1328.06[2] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2007) [hereinafter Collier ]. Finally, courts have “repeatedly emphasized Congress’s preference that individual debtors use Chapter 13 instead of Chapter 7.” In re McDonald, 205 F.3d 606, 614 (3d Cir.2000); In re Bartee, 212 F.3d 277, 284 (5th Cir.2000). The “filing date to filing date” interpretation we adopt today is in keeping with this preference: a debtor who files a new Chapter 13 petition after receiving a discharge in a typical three-to-five-year Chapter 13 plan would never be prohibited under § 1328(f)(2) from receiving a discharge, but a debtor who obtained a Chapter 13 discharge in a case filed within the last two years would be prohibited from receiving a discharge, as would debtors filing under Chapter 7 within the last four years. In re Ward, 370 B.R. 812, 814-15 (Bankr.D.Neb.2007). As the Graveses’ case illustrates, however, the “discharge date to filing date” interpretation urged by the Chapter 13 Trustee would reach an absurd result that runs counter to Congress’s often-expressed preference for Chapter 13 bankruptcy. The Graveses filed for Chapter 13 bankruptcy on January 4, 1999, and received a Chapter 13 discharge on June 16, 2004. Under the Chapter 13 Trustee’s interpretation, the Graveses would not be able to receive a discharge in a new Chapter 13 bankruptcy, which would pay all creditor claims in full, until June 16, 2006. But because the Graveses’ previous Chapter 13 plan paid at least 70 percent of the allowed unsecured claims, was proposed in good faith, and represented their best efforts, the Graveses would be eligible for a Chapter 7 discharge on the very day they received their previous Chapter 13 discharge. See 11 U.S.C.A. § 727(a)(9) (West 2004 & Supp.2006) (providing for a six-year waiting period for" }, { "docid": "11852326", "title": "", "text": "1, at 2 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 89. The Trustee has argued that his interpretation meets the purpose of the statute as it curbs more serial filings and gives creditors greater ability to collect debts. The Debtors make equally compelling points as to why their conclusion is in keeping with the goals of the statute. As the Fourth Circuit noted, the statute does not curb filings as it is not an eligibility statute, Bateman, 515 F.3d at 281, and, as is the case here, debtors must still file and complete a plan to obtain a discharge. The “filing to filing” interpretation permits a debtor who has completed a Chapter 13 plan in 3-5 years to obtain relief under a new Chapter 13, although that same debt- or could not obtain a Chapter 7 discharge, see § 727(a)(9), which reflects Congress’ preference for repayment plans over liquidation. As both parties offer plausible arguments, the Panel cannot conclude that there is a plain indicator that the rule of the last antecedent should not be followed. The final rule of statutory interpretation that the parties address is the canon that a statute should not be construed in such a manner that would render any words contained therein superfluous. The Trustee contends that this rule is not violated because the word “filed,” as set forth in the statute, is part of the phrase “case filed under” which is a new phraseology for describing the type of case. When reviewing the Bankruptcy Code, however, it is not clear that Congress chose to use the phrase as the Trustee describes. For example, despite his claim to the contrary, the post-BAPCPA Bankruptcy Code retains many references to the phrase “a case under chapter []” to describe the type of case. See, e.g., 11 U.S.C. § 330(b); § 333(a); § 341(c); § 321(a); § 326(a); § 327(c); § 103(a); § 521(a)(6); § 105(d)(2)(B). Curiously, subsection (f)(1) of § 342 refers to “cases under chapter 7 and 13” and subsection (f)(2), refers to a “case filed under chapter 7 or 13.... ” In fact, the phrase “case" }, { "docid": "4343899", "title": "", "text": "a Chapter 7 discharge after a debtor has been granted discharge in a Chapter 13 case, unless payments under the plan totaled 100% of allowed claims or 70% of such claims and the plan was proposed by the debtor in good faith and with the debtor’s best efforts). This would produce the strange result that the Graveses would not be able to receive a Chapter 13 discharge, which would pay the creditor claims in full, but would be permitted to file a Chapter 7 bankruptcy and thereby avoid payment of a larger portion of their outstanding debts. The Chapter 13 Trustee’s interpretation thus would encourage debtors that had intended to pay back all of their debts to instead opt for a Chapter 7 discharge merely because a Chapter 13 discharge would not be available to them at the height of their financial difficulties. In sum, the plain language of § 1328(f) supports a “filing date to filing date” interpretation, and this result is not absurd. Accordingly, we hold that under § 1328(f), a debtor may not obtain a Chapter 13 discharge in a bankruptcy filed within two years of filing an earlier Chapter 13 petition that resulted in a discharge, or within four years of filing an earlier Chapter 7, 11, or 12 petition that resulted in a discharge. Because the time between the Graveses’ Chapter 13 filings was more than 2 years, § 1328(f)(2) does not prohibit the Graveses from receiving a discharge. We therefore affirm the bankruptcy court orders denying the Chapter 13 Trustee’s motion to dismiss and confirming the Graveses’ Chapter 13 Plan. III. On the other hand, because the time between Bateman’s previous Chapter 7 filing in which he received a discharge and his current Chapter 13 filing was less than 4 years, Bateman is not eligible for a dis charge under § 1328(f)(1); indeed, Bate-man does not contend otherwise. Instead, to resolve Bateman’s case, we must decide whether a party (like Bateman) can file a Chapter 13 bankruptcy petition when a discharge is not available. The Chapter 13 Trustee argues that § 1328(f) was added" }, { "docid": "4343898", "title": "", "text": "as would debtors filing under Chapter 7 within the last four years. In re Ward, 370 B.R. 812, 814-15 (Bankr.D.Neb.2007). As the Graveses’ case illustrates, however, the “discharge date to filing date” interpretation urged by the Chapter 13 Trustee would reach an absurd result that runs counter to Congress’s often-expressed preference for Chapter 13 bankruptcy. The Graveses filed for Chapter 13 bankruptcy on January 4, 1999, and received a Chapter 13 discharge on June 16, 2004. Under the Chapter 13 Trustee’s interpretation, the Graveses would not be able to receive a discharge in a new Chapter 13 bankruptcy, which would pay all creditor claims in full, until June 16, 2006. But because the Graveses’ previous Chapter 13 plan paid at least 70 percent of the allowed unsecured claims, was proposed in good faith, and represented their best efforts, the Graveses would be eligible for a Chapter 7 discharge on the very day they received their previous Chapter 13 discharge. See 11 U.S.C.A. § 727(a)(9) (West 2004 & Supp.2006) (providing for a six-year waiting period for a Chapter 7 discharge after a debtor has been granted discharge in a Chapter 13 case, unless payments under the plan totaled 100% of allowed claims or 70% of such claims and the plan was proposed by the debtor in good faith and with the debtor’s best efforts). This would produce the strange result that the Graveses would not be able to receive a Chapter 13 discharge, which would pay the creditor claims in full, but would be permitted to file a Chapter 7 bankruptcy and thereby avoid payment of a larger portion of their outstanding debts. The Chapter 13 Trustee’s interpretation thus would encourage debtors that had intended to pay back all of their debts to instead opt for a Chapter 7 discharge merely because a Chapter 13 discharge would not be available to them at the height of their financial difficulties. In sum, the plain language of § 1328(f) supports a “filing date to filing date” interpretation, and this result is not absurd. Accordingly, we hold that under § 1328(f), a debtor may" }, { "docid": "2865347", "title": "", "text": "“filed.” This Court next considers the meaning of “filed.” The majority courts assert that a case is “filed” under the chapter in which the debtor is currently proceeding. The Kerr court illustrated the majority position in finding that “[w]hile ... cases [a]re initially filed under Chapter 13, [after conversion] they are ... filed under Chapter 7.” In re Kerr, Nos. 06-12302, 06-12881, 2007 WL 2119291, at *3 (Bankr.W.D.Wash. July 18, 2007). The minority courts believe that “filed” refers to the initial filing of a petition in bankruptcy. See In re Miller, 381 B.R. 736, 741 (Bankr.W.D.Ark. 2008). The Fox court pointed to the consistent use of “filed” and “filing” in 11 U.S.C. §§ 342(d), 707(b)(3), 707(b)(4)(A), 707(c)(2) and 707(c)(3) to refer to the initial filing of a petition as evidence that Congress intended “filed” in § 707(b) to also refer to the initial filing. In re Fox, 370 B.R. 639, 644 (Bankr.D.N.J.2007). In analyzing the statutory language of § 1328(f)(2), the Fourth Circuit addressed the meaning of “filed under” and found that it means something more than “under.” Bateman, 515 F.3d at 278. Section 1328(f)(2) provides that “the court shall not grant a discharge ... if the debtor received a discharge in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order.” 11 U.S.C.A. § 1328(f)(2) (West 2009). In Bateman, the Chapter 13 trustee argued “that § 1328(f)(2) prohibits a discharge in a Chapter 13 case filed within two years of the date of discharge in the prior bankruptcy.” Id. at 276 (emphasis added). The trustee’s “discharge date to filing date” interpretation requires that the phrase “during the 2-year period preceding the date of such order” modify “received a discharge” instead of “filed under ...” Id. at 277. The Fourth Circuit, however, declined to accept the Chapter 13 trustee’s argument. Id. at 278. The court found that the trustee’s interpretation rendered “filed” superfluous, “believ[ing] that when Congress used the phrase ‘filed under,’ it meant ‘filed under’ and not just ‘under.’ ” Id. It ultimately held “that under § 1328(f)[ (2) ]," }, { "docid": "11852303", "title": "", "text": "support of Mr. Gagne’s argument, Mrs. Gagne cited Branigan v. Bateman (In re Bateman), 515 F.3d 272 (4th Cir.2008), and Baxter v. Lewis (In re Lewis), 339 B.R. 814 (Bankr.S.D.Ga.2006). In the memorandum she attached to her response, Mrs. Gagne explained that the Debtors filed the present case in good faith and only after experiencing financial difficulties due to her health care expenses. On February 28, 2008, the bankruptcy court held a hearing on the Motion. In the Minute Order (the “Order”), the bankruptcy court stated: “For the reasons set forth on the record during the hearing, neither debtor is not [sic] entitled to a discharge under 11 U.S.C. sec. 1328(f). The trustee’s motion to dismiss the case is denied without prejudice because the debtors intend to file a 100% plan.” On March 3, 2008, the bankruptcy court denied the Debtors’ request for reconsideration and to stay the Order. On March 6, 2008, the Debtors filed both an appeal, as to Mr. Gagne’s entitlement to a discharge only, and a motion to stay the Order pending appeal. On March 11, 2008, the bankruptcy court entered an Order Granting Stay Pending Appeal (“Stay Order”). With respect to the statute, it wrote: The language of § 1328(f) is ambiguous. The troublesome language with respect to a prior chapter 7 ease is found in (f)(1): “Notwithstanding subsections (a) and (b), the court shall not grant a discharge ... if the debtor has received a discharge in a case filed under chapter 7,11, or 12 of this title ... during the 4-year period preceding the date of the order for relief under this chapter.... ” [¶]... ] Some readers, like the trustee, place the emphasis on “received a discharge .... during the four-year period.... Others, like the debtors, place it on ‘a case filed under chapter ... during the four-year period ... ’” The bankruptcy court then ruled: Despite [the Debtors] failure to make any showing under the applicable four-part test for injunctive relief, a stay is appropriate in this instance for two reasons: First, the law on the point in contention is unsettled" }, { "docid": "2865345", "title": "", "text": "omitted) (quoting Witt v. United Cos. Lending Corp. (In re Witt), 113 F.3d 508, 512 (4th Cir.1997) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992))). Third, “identical words and phrases within the same statute should normally be given the same meaning.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 2417, 168 L.Ed.2d 112 (2007). The U.S. Trustee argues that proper application of the last antecedent doctrine to the phrase “a case filed by an individual debtor under this chapter” in § 707(b)(1) requires that “under this chapter” modify “debtor.” The U.S. Trustee cites Justice v. Advanced Control Solutions, Inc. (In re Justice), No. 07-5231, 2008 WL 4368668 (W.D.Ark. Sept.22, 2008), which holds that because “under this chapter” modifies “debtor,” any “individual debtor under this chapter” is subject to § 707(b) scrutiny. Id. at *4. The Debtors reply that applying the last antecedent doctrine as advocated by the U.S. Trustee renders the phrase “under this chapter” superfluous. The Debtors argue that proper application of the doctrine dictates that “under this chapter” modify “filed.” This Court agrees that reading “under this chapter” to modify “debtor” would render the phrase “under this chapter” superfluous. If “a case filed by an individual debtor under this chapter” applies to every individual case whether initially filed in or converted to Chapter 7, then “under this chapter” adds nothing as 11 U.S.C. § 103(b) already limits application of § 707(b) to only Chapter 7 cases. See 11 U.S.C.A. § 103(b) (West 2009). Congress could have excluded the phrase “under this chapter” and achieved the same result. Further, reading “under this chapter” to modify “filed” is consistent with the Fourth Circuit’s reasoning in Branigan v. Bateman (In re Bateman), 515 F.3d 272 (4th Cir.2008). In Bateman, the Fourth Circuit applied the last antecedent doctrine to 11 U.S.C. § 1328(f)(2) and held that “the phrase ‘during the 2-year period preceding the date of such order’ in § 1328(f)(2) modifies the immediately preceding phrase ‘filed under ...’” Id. at 278. Thus, “under this chapter” modifies" }, { "docid": "19767771", "title": "", "text": "avoid a construction that gives the subsection a small bite and few teeth — Carroll would instead subject all chapter 13 debtors to a much more severe sanction. Stranger still, Carroll’s reading of § 1328(f)(2) would have the perverse effect of barring some debtors from seeking chapter 13 relief whom the law allows to obtain a chapter 7 discharge — a result at odds with her own characterization of Congress’s purpose. Ordinarily, a debtor who has obtained a chapter 13 discharge must wait six years before filing a chapter 7 petition (at least one that can result in a discharge). See 11 U.S.C. § 727(a)(9). But if that debtor received the previous chapter 13 discharge after either (A) paying all of his unsecured debts in full or (B) proposing a payment plan in good faith, making his best effort to complete the payment plan in full and actually making payments totaling at least 70% of his unsecured debts, the debtor can turn around and obtain a chapter 7 discharge the next day. See id.; see also Bateman, 515 F.3d at 279-80; Myers, 2008 WL 2783455, at *2. Yet under Carroll’s discharge-to-fíling interpretation of § 1328(f)(2), that same debtor would have to wait another two years to seek a second chapter 13 discharge. Carroll’s construction thus would effectively encourage debtors to pursue what are known as “chapter 20” bankruptcies (i.e., a debtor obtaining a chapter 13 discharge followed by a chapter 7 discharge) — the very evil she contends Congress designed the statute to discourage— by closing the door on the primary (and preferred) alternative to that disfavored practice. Instead of providing a persuasive reason to read the statute against the grammatical grain, Carroll’s purpose-based argument simply trades one unusual, if not bizarre, result for another. And it does so to save from (potential) desuetude a subdivision no one suggests was the centerpiece of § 1328(f)’s design. As applied here, a purpose-driven approach to statutory interpretation defaults on its promise: of helping us to understand what the provision means. Searching for signals from competing policies, surrounded by perplexing results on all" }, { "docid": "19767758", "title": "", "text": "contrary construction — that the four-year window begins on the date of the first discharge — requires reading “during the 4-year period” as reaching back to the phrase “received a discharge” in subsection (f)’s opening clause. But she points to nothing in the statute to rebut the last-antecedent presumption. Congress no doubt could have worked around this grammatical rule had it wished, see Bate-man, 515 F.3d at 278 & n. 8, but we see nothing in the section to justify dispensing with this default rule of interpretation. Besides honoring the last-antecedent rule, this construction of the statute has another virtue: It avoids reading the word “filed” out of the statute. Had Congress meant to adopt a discharge-to-filing rule, it could have satisfied that objective “by omitting the word ‘filed’ entirely” from the provision. Id. at 278. The clipped phrase (“a case under”) would perform the very function that Carroll contends “in a case filed under” accomplishes: denoting the chapter under which the debtor filed his petition. Throughout the Bankruptcy Code, Congress has deployed the “a case under” phrase to perform that same function. See, e.g., 11 U.S.C. §§ 103(a)-(k), 105(d)(2)(B), 321(a), 502(a), 706(a)-(d), 1141(d)(3)(C), 1302(b)(3), 1517(d). Carroll offers no explanation why Congress would have added the word “filed” to § 1328(f)(1) when a more familiar phrase, which does not include the term, would have achieved the same objective. Nor does Carroll’s reading offer any role for “filed” to play in the statute, save for superfluity, a result we must resist where possible. See, e.g., Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985). We have some company in reaching this conclusion. Although no other court of appeals has addressed this precise issue, the Fourth Circuit has held that § 1328(f)(2)’s two-year time-out between obtaining discharges under chapter 13 begins on the date the first petition is filed, not when the debtor receives the first discharge. See Bateman, 515 F.3d at 280; accord Gagne v. Fessenden (In re Gagne), 394 B.R. 219, 230 (1st Cir. BAP 2008); In" }, { "docid": "11852315", "title": "", "text": "Earlier this year, the Fourth Circuit issued a decision analyzing the statute in a consolidated appeal. Branigan v. Batemen (In re Bateman), 515 F.3d 272 (4th Cir.2008). In those cases, the Chapter 13 trustee had filed motions to dismiss on grounds that the debtors were not entitled to discharges under § 1328(f). The Fourth Circuit wrote that to resolve the matter “we must decide whether the phrase ‘during the 2-year period preceding the date of such order’ in § 1328(f)(2) modifies the phrase ‘received a discharge’ or the phrase ‘filed under chapter 13 of this title.’ ” Id. at 277. Citing Lamie v. United States Trustee, 540 U.S. at 534, 124 S.Ct. 1023, the Fourth Circuit explained that the plain language of the statute dictated calculating the applicable time periods from date of filing to date of filing. 515 F.3d at 277. Such a conclusion, it stated, “is buttressed by the doctrine of the last antecedent, which teaches that ‘a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediate ly follows.’ ” Id. (citing Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003)). It further wrote, “[i]n contrast to the Chapter 13 Trustee, we believe that when Congress used the phrase ‘filed under,’ it meant ‘filed under’ and not just ‘under.’ ” Id. In response to the Chapter 13 trustee’s argument that such an interpretation would render the statute meaningless because most Chapter 13 plans have terms of between three and five years, the Fourth Circuit agreed with the lower court that Congress recognized that some plans have shorter terms, citing §§ 1325(b) and 1328(b). Lastly, the Fourth Circuit determined that its interpretation was in keeping with Congress’ preference for Chapter 13. It explained: A debtor who files a new Chapter 13 petition after receiving a discharge in a typical three-to-five year Chapter 13 plan would never be prohibited under § 1328(f)(2) from receiving a discharge, but a debtor who obtained a Chapter 13 discharge in a case filed within the last two years would" } ]

[ { "docid": "23408700", "title": "", "text": "v. Johnson, 99 F.3d 659, 660 (5th Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997). To obtain a CPC, the petitioner must make a “substantial showing of a denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotes and citation omitted). Such a showing requires a demonstration “that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4. Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require that a petitioner obtain a COA See 28 U.S.C. § 2253(c)(1). A COA may be issued only where the applicant has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Notwithstanding the slightly different wording between the pre-AEDPA and the amended § 2253, we have noted previously that the AEDPA was intended to codify the Barefoot standard and thus that the standard governing the issuance of a COA requires the same showing as that for obtaining a CPC. See Drinkard, 97 F.3d at 756. Nonetheless, because Green’s habeas petition was filed with the district court before April 24, 1996, Lindh compels that we review his petition for a CPC under the pre-AEDPA jurisprudence. Under the pre-AEDPA standards, state court findings are entitled to a presumption of correctness unless, among other things, the petitioner demonstrates that the state courts failed to resolve the claims on the merits. See Livingston v. Johnson, 107 F.3d 297, 302 (5th Cir.1997). Because Green argues that the state failed so to adjudicate his claims, we must determine initially whether a state court has disposed of Green’s claims on the merits. Green argues that the state habeas courts’ “perfunctory disposition” is not a resolution on the merits because, he alleges, the petitions were denied without an evidentiary hearing “and without reference to any factual or legal issue presented.” According to Green, the resolution-on-the-merits" } ]

[ { "docid": "1429246", "title": "", "text": "denied relief in June 1997, and denied Mr. Foster a certificate of appealability. Applying Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), we conclude a certificate of appeal-ability is not a jurisdictional requirement in this appeal since Mr. Foster’s petition was filed before April 24, 1996, the enactment date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The version of 28 U.S.C. § 2253 applicable to this appeal requires a certificate of probable cause. In his brief on appeal, Mr. Foster acknowledges this requirement and requests that this court issue a certificate of probable cause. Because we conclude Mr. Foster has made a “substantial showing of the denial of [a] federal right,” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks and citation omitted), we grant a certificate of probable cause and proceed to consider Mr. Foster’s petition, applying pre-AEDPA law. DISCUSSION Mr. Foster raises five issues on appeal from the denial of his habeas petition: (1) ineffective assistance of counsel during both the guilt and sentencing stages of trial; (2) denial of a post-examination competency hearing; (3) failure to disclose the true nature of lenient treatment provided Mrs. Foster in exchange for her testimony; (4) failure to instruct the jury regarding Mrs. Foster’s status as an accomplice; and (5) unconstitutionality of sentencing stage jury instructions concerning aggravating and mitigating circumstances. We review the district court’s legal conclusions concerning these issues de novo and its factual findings for clear error. Hill v. Reynolds, 942 F.2d 1494, 1495 (10th Cir.1991). Habeas relief must be granted only if the claimed constitutional error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). If we are in “grave doubt” about whether an error satisfies that standard, then the error cannot be treated as harmless and the petitioner must prevail. O’Neal v. McAninch, 513 U.S. 432," }, { "docid": "6510669", "title": "", "text": "“A petitioner must first obtain a Certificate of Probable Cause in order for jurisdiction to vest with this court.” Baldree v. Johnson, 99 F.3d 659, 660 (5th Cir.1996). To obtain a CPC, the petitioner must make a “substantial showing of the denial of a federal right.” Id. (citing Barefoot v. Estelle, 463 U.S. 880, 882, 103 S.Ct. 3383, 3389, 77 L.Ed.2d 1090 (1983) (internal quotations and citations omitted)). To satisfy this requirement, petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are ‘adequate to deserve encouragement to proceed ceed further.’ ” Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. II. Application of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We first address the question of whether the AEDPA is applicable to Livingston’s contention that he did not receive a proper hearing to resolve his claim of ineffective assistance of counsel at the punishment phase of the trial. Livingston filed his application for a CPC prior to April 24, 1996, the effective date of the AEDPA. The pre-AED-PA standards governing the presumption of correctness afforded state-court factfinding (subsection (d)) were somewhat less stringent than the new subsection (e) of the AED-PA. The AEDPA altered the legal standard for granting habeas relief to state prisoners based upon violations of their federal constitutional rights. See 28 U.S.C. § 2254(d). In Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir.1996), we held that §§ 102 and 104 of the AEDPA applied to pending habeas cases and that a habeas appellant’s application for a “certificate of probable cause” (“CPC”), the procedural requirement before the AEDPA was enacted, appropriately could be treated as an application for a COA, without violating the retroactivity dictates of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Nonetheless, because Livingston’s claims are framed in terms of the pre-AEDPA standard and because we conclude that he is not entitled to habeas relief under either standard, we will review his" }, { "docid": "1413931", "title": "", "text": "of Appeals affirmed the appeal and denied the habeas petition. The California Supreme Court denied further review on December 28, 1994. Fuller then filed a Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of California. On April 21, 1997, the district court denied the petition. Fuller filed a Notice of Appeal on May 27, 1997, and moved for a certificate of probable cause (“CPC”) on June 6, 1997. On June 23, 1997, the district court issued an Order of Probable Cause limited to one issue. II. AEDPA The government raises a preliminary issue regarding the applicability of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended in 28 U.S.C. §§ 2244, 2253, 2254 and 2255), in requiring a certificate of appealability (“COA”) and the limitation of this court’s review to only those issues designated by the district court in the COA. The issue presents itself because Fuller filed his habeas petition on March 29, 1995, prior to the effective date of AEDPA, but did not file his notice of appeal until May 27, 1997, after the effective date of the AEDPA. As a result, Fuller contends that he is not required to obtain a COA and that his claims are not limited to only those presented in the COA. “Before the passage of the AEDPA, 28 U.S.C. § 2253 required state prisoners seeking to appeal denials of habeas relief to get a ‘certificate of probable cause [CPC],’ which could be issued if the prisoner made ‘a substantial showing of the denial of a federal right.’ ” Crowell v. Walsh, 151 F.3d 1050, 1051 (D.C.Cir.1998) (citing Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)) (emphasis added). “Under the AEDPA prisoners must get a ‘certificate of appealability [COA],’ which requires them to make ‘a substantial showing of the denial of a constitutional right.’ ” Id. (emphasis added); see 28 U.S.C. § 2253(c)(2). The government argues that petitioner is limited to the single issue certified by reason of the" }, { "docid": "12409165", "title": "", "text": "ON SUGGESTION OF- REHEARING EN BANC. PER CURIAM: Appellee Harry K. Singletary, Jr. asks us to reexamine our decision in Hardwick v. Singletary, 122 F.3d 935 (11th Cir.1997). No member of this panel nor any other judge in regular active service on the court having requested that the court be polled on rehearing en banc (Rule 35, Fed. R.App. P.; 11th Cir. Rule 35-5), the suggestion of rehearing en banc is DENIED. However, upon reconsideration, the opinion of this panel is vacated solely as to the last paragraph, in which we vacated the district court’s order and remanded this case for a reevaluation of the petitioner’s application for a certificate of probable cause. The following three paragraphs are entered in its place: Although we conclude that the district court erred in applying the standard governing certificates of appealability under the AEDPA to Hardwick’s petition, we further resolve that remand is unnecessary. The pre-AEDPA certificate of probable cause required a petitioner to make a “substantial showing of a denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotes and citation omitted). Under the AEDPA, a certificate of appealability may be issued only where the applicant has made a “substantial showing of the denial 'of a constitutional right.” 28 U.S.C. § 2253(c)(2). Notwithstanding a marginal variance in the language identifying the necessary showing with respect to certificates of probable cause and appealability, we conclude that the standard governing, certificates of probable cause and certificates of appealability is materially identical. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997) (“[T]he AEDPA was intended to codify the Barefoot standard and thus ... the standard governing the issuance of a COA requires the same showing as that for obtaining a CPC.”). Where, as in the instant case, the district court has granted a certificate of appealability as to any issue presented in a petition pending on the date that the AED-PA became effective, we construe the grant of a certificate of appealability as a grant of a certificate of probable cause to" }, { "docid": "23487986", "title": "", "text": "(“AEDPA”), Pub.L. 104-132, 110 Stat. 1214, amended 28 U.S.C. § 2253 to require a certificate of appealability (“COA”) before an appeal may proceed in a § 2255 or a § 2254 action. Following the Supreme Court’s decision in Lindh v. Murphy, - U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), we held that § 2254 petitioners are subject to the AEDPA’s COA requirement only when a § 2254 petition is filed in the district court after the AEDPA’s effective date of April 24, 1996. United States v. Carter, 117 F.3d 262, 264 n. 1 (5th Cir.1997). As an initial matter, we must address whether the various appellants in this case have conformed to any applicable COA requirements. For § 2254 petitioners not subject to the AEDPA’s new COA requirement, its predecessor, the certificate of probable cause (“CPC”), remains in effect as a prerequisite to our jurisdiction. See, e.g., Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995). We must examine the various appellants’ cases’ chronologies to determine if an appellant requires a COA or a CPC. Then, we must ascertain if each appellant has met the applicable prerequisites for our jurisdiction. 1. John Hallmark (“Hallmark”) The district court’s final judgment denying Hallmark’s § 2254 motion was entered on August 21,1995 and Hallmark filed his notice of appeal on September 13, 1995. Thus, the AEDPA’s new COA requirement does not apply to Hallmark and its predecessor, the CPC, remains in effect for his appeal. The district court denied Hallmark’s application for a CPC in November 1995. We construe Hallmark’s notice of appeal as a request for the issuance of a CPC. See Fed. R.App. P. 22(b) (1995). Unless we grant a CPC, we have no jurisdiction to hear an appeal from a denial of habeas relief. Sterling v. Scott, 57 F.3d 451, 453 (5th Cir.1995). To obtain a CPC, Hallmark must make a substantial showing that he has been denied a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090 (1983). This standard does not require Hallmark to demonstrate the he would" }, { "docid": "15422969", "title": "", "text": "of the briefs submitted and oral argument. We conclude that the COA was properly granted. We then proceed, using the full presentation of the exhaustion issue provided by the briefs and oral argument, to address the appeal itself. II. The COA Henry’s application for a COA raises two questions: (1) whether it is ever appropriate to allow appeals from procedural-rule dismissals of § 2254 petitions; and (2) if it is ever appropriate, when COAs should be granted to permit such appeals. We begin our analysis of both questions with some history. The Antiterrorism and Effective Death Penalty Act of 1996 § 102, 28 U.S.C. § 2253 (Supp. II 1997) (AED-PA), both renamed the certificate needed to appeal the denial or dismissal of a § 2254 petition and changed the standard for issuing that certificate. Prior to AED-PA, petitioners wanting to appeal had to seek a certificate of probable cause (CPC), which required making a “substantial showing of the denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (alteration in original) (emphasis added) (quoting Steivart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971)). By contrast, under § 2253(c)(1) federal courts may grant COAs “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added). Despite the change in the statutory language, this circuit has concluded that the pre- and post-AEDPA standards for permitting appeal are identical as they relate to the merit demanded of the constitutional issues raised. See Hardwick v. Sin-gletary, 126 F.3d 1312, 1313 (11th Cir. 1997) (“Notwithstanding a marginal variance in the language identifying the necessary showing with respect to certificates of probable cause and appealability, ... the standard governing certificates of probable cause and certificates of appealability is materially identical.”). Stated fully, that standard requires an appealing petitioner to “ ‘demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are “adequate to deserve encouragement to proceed further.”" }, { "docid": "1413932", "title": "", "text": "the effective date of AEDPA, but did not file his notice of appeal until May 27, 1997, after the effective date of the AEDPA. As a result, Fuller contends that he is not required to obtain a COA and that his claims are not limited to only those presented in the COA. “Before the passage of the AEDPA, 28 U.S.C. § 2253 required state prisoners seeking to appeal denials of habeas relief to get a ‘certificate of probable cause [CPC],’ which could be issued if the prisoner made ‘a substantial showing of the denial of a federal right.’ ” Crowell v. Walsh, 151 F.3d 1050, 1051 (D.C.Cir.1998) (citing Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)) (emphasis added). “Under the AEDPA prisoners must get a ‘certificate of appealability [COA],’ which requires them to make ‘a substantial showing of the denial of a constitutional right.’ ” Id. (emphasis added); see 28 U.S.C. § 2253(c)(2). The government argues that petitioner is limited to the single issue certified by reason of the passage of the AEDPA, even though the Petition for a Writ of Habeas Corpus was filed prior to the effective date. The Eighth Circuit has held that under such circumstances the date of the filing of the notice of appeal should be the appropriate date for the determination of the applicability of AEDPA limitations. See Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir.1997) (holding that the notice of appeal was subject to certificate of appealability requirements of AEDPA). Tiedeman recognized that in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the United States Supreme Court held that the amendments made by the AEDPA are, “generally speaking,” only prospective. Tiedeman, 122 F.3d at 521. The Tiedeman court explained that it could not think of a reason why “a new provision exclusively directed towards appeal procedures would depend for its effective date on the filing of a case in a trial court, instead of on the filing of a notice of appeal or similar document.” Id. The Tiedeman case is contrary" }, { "docid": "21664495", "title": "", "text": "CV 338 (E.D.Tex.1999). The district court issued COA on four of twenty-one issues requested by Styron. II. Application for COA A. Issues and Standard of Review Styron now seeks from this court COA for twelve additional issues on which to appeal the district court’s denial of habeas relief. Since Styron filed his habeas application in the district court after April 24, 1996, we apply the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.1997). The AEDPA provides that “[ujnless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from — (A) the final order in a ha-beas corpus proceeding in which the deten tion complained of arises out of process issued by a State court....” 28 U.S.C. § 2253(c)(1)(A). Only if the applicant makes a “substantial showing of the denial of a constitutional right” may a COA issue, and any such COA shall indicate the specific issue or issues that satisfy this showing. Id. § 2253(c)(2). “A ‘substantial showing’ requires the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.’ ” Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.1996), (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also Rudd v. Johnson, 256 F.3d 317, 318-19 (5th Cir.2001); Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.2000) (citing Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000)). “Our determination requires deference to the state habeas court’s adjudication of [Styron’s] claims on the merits, unless that adjudication: (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme" }, { "docid": "13788170", "title": "", "text": "filed before the April 24, 1996 effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which, among other provisions, amended 28 U.S.C. section 2253. See Tompkins v. Moore, 193 F.3d 1327, 1330 (11th Cir.1999). After Eagle received his CPC, however, the Supreme Court held that the AEDPA amendments to section 2253 govern all appeals initiated after AEDPA’s effective date, regardless of the filing date of the habeas petition with the district court. See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1600, 146 L.Ed.2d 542 (2000). AEDPA changed the name of the certificate required to appeal the denial or dismissal of a section 2253 petition from CPC to “certificate of appealability” (“COA”) and added a statutory standard for issuing the certificate. See Henry v. Dep’t of Corr., 197 F.3d 1361, 1364 (11th Cir.1999). Unlike a CPC, a COA must “indicate which specific issue or issues” show that the applicant has suffered “the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)-(3); Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir.2000). Although the pre-AEDPA version of section 2253 did not require that the certificate specify the issues for which the applicant had been granted leave to appeal, precedent required that a petitioner make a “substantial showing of the denial of [a] federal right” in order to obtain a CPC. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (alteration in original) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), overruled in part on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Recently, the Supreme Court decided that the preAEDPA showing a petitioner had to make to obtain a CPC and the post-AEDPA statutory standard for obtaining a COA are substantially the same. See Slack, 529 U.S. at 483-84, 120 S.Ct. at 1603, (“Except for substituting the word ‘constitutional’ for the word ‘federal,’ § 2253 is a codification of the CPC standard announced in Barefoot v. Estelle .... ”). The primary difference between the certificates, then, is that" }, { "docid": "23428916", "title": "", "text": "denied the petition, and Beaty did not seek appellate review. On November 6, 1992, Beaty filed a § 2254 petition with the district court. The district court denied the petition on November 24, 1999, without conducting an evidentiary hearing. The court denied some of the claims on the merits and others as procedurally defaulted. Beaty filed a timely notice of appeal. Beaty also filed a motion with the district court requesting a certificate of appealability (“COA”) on several issues. The district court granted a certificate of probable cause (“CPC”) instead of a COA. II Beaty filed his § 2254 petition in November 1992, well before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Accordingly, our review is generally governed by pre-AEDPA standards. See, e.g., Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Karis v. Calderon, 283 F.3d 1117, 1126 n. 1 (9th Cir.2002). However, AEDPA’s COA requirement is applicable to Beaty’s appeal. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Prior to AEDPA, a petitioner had to obtain a CPC in order to appeal the denial of a habeas petition. See, e.g., Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). To obtain a CPC, a petitioner had to make a “substantial showing of the denial of a federal right.” Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir.1997) (per curiam) (internal quotation marks omitted). If the petitioner made such a showing as to at least one issue, he could appeal all of the issues in the petition. See, e.g., Odle v. Woodford, 238 F.3d 1084, 1086 n. 2 (9th Cir.), cert. denied, — U.S. —, 122 S.Ct. 201, 151 L.Ed.2d 142 (2001). Under AEDPA, a petitioner must obtain a COA rather than a CPC. See 28 U.S.C. § 2253(c). Unlike a CPC, a COA is granted on a claim-by-claim basis. See, e.g., Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam). A peti tioner must make a substantial showing of the denial of a" }, { "docid": "12416969", "title": "", "text": "the Supreme Court issued its opinion in Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), holding that the AEDPA does not apply to cases pending at the time of its effective date of April 24, 1996. In response to the Lindh decision, Ransom moved to alter or amend the district court’s judgment. That motion was denied. Ransom filed a notice of appeal and a request for CPC. The district court denied the CPC and vacated its stay. Ransom’s execution date of October 28, 1997 was then set by the state court. On August 21, 1997, Ransom filed in this court a motion to stay the execution. Ransom filed a motion for CPC on September 26,1997. III. STANDARD OF REVIEW We apply pre-AEDPA standards to this habeas petition filed prior to the effective date of the AEDPA for relief from a Texas death sentence. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997)(applying pre-AEDPA standard to case filed before effective date of act as Texas had not met opt-in requirements for capital cases). The merits of Ransom’s claim may be reviewed only if the court grants a certificate of probable cause (“CPC”). A appellate court is without jurisdiction to address the merits of an appeal from a district court denial of habeas relief unless it grants a CPC. James v. Cain, 50 F.3d 1327, 1330 (5th Cir.), cert. denied, — U.S.-, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995). To obtain a CPC, Ransom must “make a substantial showing that he has been denied a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). Ransom must “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4; James, 50 F.3d at 1330. The nature of the penalty in a capital ease is a relevant, but not determinative, factor in deciding whether to grant a CPC." }, { "docid": "12409166", "title": "", "text": "463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotes and citation omitted). Under the AEDPA, a certificate of appealability may be issued only where the applicant has made a “substantial showing of the denial 'of a constitutional right.” 28 U.S.C. § 2253(c)(2). Notwithstanding a marginal variance in the language identifying the necessary showing with respect to certificates of probable cause and appealability, we conclude that the standard governing, certificates of probable cause and certificates of appealability is materially identical. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997) (“[T]he AEDPA was intended to codify the Barefoot standard and thus ... the standard governing the issuance of a COA requires the same showing as that for obtaining a CPC.”). Where, as in the instant case, the district court has granted a certificate of appealability as to any issue presented in a petition pending on the date that the AED-PA became effective, we construe the grant of a certificate of appealability as a grant of a certificate of probable cause to appeal all issues presented in the petitioner’s federal habeas petition. In sum, although we agree with the petitioner that the district court erroneously applied the certificate of appealability provision under the AEDPA, his motion to relinquish jurisdiction and remand this cause to the district court is DENIED. The district court’s order granting a certificate of appeal-ability, therefore, will be construed as a grant of probable cause as to the entire petition. Accordingly, Hardwick’s appeal from the denial of his petition for federal habeas corpus relief may proceed. . Similarly, where the district court has denied the certificate of appealability under the AEDPA with respect to. petitions pending on the date of the new law’s enactment, we will construe the order as a denial of a certificate of probable cause and, consistent with pre-AEDPA practice, evaluate whether the certificate was improvidently denied." }, { "docid": "10117898", "title": "", "text": "1996). See Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). As such, because Rector’s federal habeas petition was pending as of April 24, 1996, the AEDPA would have applied to this appeal. On June 23, 1997 — while this appeal was pending in our court — the Supreme Court handed down Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), in which the Court held that (in noncapital cases at least), the AEDPA does not apply to cases pending on the Act’s effective date. It is unclear whether or not the reasoning in Lindh effectively overrules Drinkard (a capital case) and compels us to apply pre-AED-PA standards to Rector’s appeal. We need not decide this question, however, because its resolution is not necessary to the disposition of Rector’s appeal, for whether his claims are analyzed under AEDPA or pre-AEDPA standards, Rector is not entitled to federal habe-as relief. See, e.g., Livingston v. Johnson, 107 F.3d 297, 302 (5th Cir.1997). Accordingly, we apply our pre-AEDPA case law to this appeal and construe Rector’s notice of appeal as a request for a CPC. II. Standard of Review The requirements for issuing a CPC are well established. Rector cannot appeal the district court’s denial of federal habeas relief unless he obtains a CPC from the district court or this court. 28 U.S.C. § 2253, amended by AEDPA § 102. Because the district court denied Rector’s request for a CPC, Rector’s right to appeal turns on whether we find that he has made a “substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). In particular, Rector must “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (internal citations and quotation marks omitted). Rector need not, however, demonstrate that" }, { "docid": "6819084", "title": "", "text": "ruling that his appointed attorneys at his second trial did not violate his right to effective assistance of counsel. Specifically, he asserts “that trial counsel’s decision not to present available mental health evidence in mitigation at the punishment phase of Appellant’s trial amounted to constitutionally ineffective assistance ... [and that] the deficiency prejudiced Appellant to the extent that a reasonable person would lose faith in the confidence of the outcome of the trial.” II. Because he filed his habeas petition in the district court on March 5,1995, before the effective date of the AEDPA, Cannon’s appeal is governed by the scheme of habeas corpus law that prevailed before the AED-PA’s enactment. In Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that the AEDPA’s standard for reviewing petitions by state prisoners, codified at 28 U.S.C. § 2254(d), does not apply retroactively to petitions filed before April 24, 1996. The AEDPA has amended § 2253 to require a certificate of appealability instead of a certificate of probable cause. Both types of certificates require Cannon to make a substantial showing of the denial of a constitutional right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983); Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). But, in contrast to pre-AEDPA law, if a district court grants a certificate of appealability, it must “indicate which specific issue or issues satisfy the showing required.” 28 U.S.C. § 2253(c)(3). See also Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.1997). In light of Lindh, we have held that habeas petitioners who want to appeal need only a certificate of probable cause if they filed their petition in the district court before enactment of the AEDPA. United States v. Roberts, 118 F.3d 1071, 1072 (5th Cir.1997) (per curiam). We construe the district court’s certificate of appealability as a certificate of probable cause. Thus, Cannon does not need further certification from a circuit judge before we can hear the merits of" }, { "docid": "21088229", "title": "", "text": "a certificate of probable cause (“CPC”), and, finding that “reasonably debatable issues are presented by this appeal of the Petitioner’s claim of ineffective assistance of counsel,” granted the CPC. Subsequently, in Slack v. McDaniel, ■ — ■ U.S.-, 120 S.Ct. 1595, 1602-03, 146 L.Ed.2d 542 (2000), the Supreme Court held that a petitioner filing a habeas appeal after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) is required to obtain a certificate of appealability (“COA”), not a CPC. Since AEDPA’s effective date is April 24, 1996, and Manning initiated this appeal on March 24, 1997, this requirement applies to him. Under the former provisions governing CPCs, a petitioner was required to make “a substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack, the Court noted that [ejxcept for substituting the word “constitutional” for the word “federal,” § 2253 is a codification of the CPC standard announced in Barefoot v. Estelle, 463 U.S. at 894, 103 S.Ct. 3383. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in § 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word “constitutional.” 120 S.Ct. at 1603. Because we hold that Manning demonstrated that he was denied his constitutional rights with respect to the ineffective assistance of counsel claim and that the district court was incorrect in its procedural ruling, we conclude that he has made the requisite “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We therefore grant the COA as to both issues and exercise jurisdiction over these issues on appeal pursuant to Section 2253. We review the district court’s decision to dismiss the habeas petition for procedural default de novo. See Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir.1997). We also review de novo the district" }, { "docid": "5353404", "title": "", "text": "Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The Oklahoma trial court denied Mr. Cooks’ second application for post-conviction relief. That decision was affirmed in Cooks v. State, Case No. PC-89-131 (Okla.Crim.App. Jan. 11, 1993), cert. denied, 510 U.S. 851, 114 S.Ct. 152, 126 L.Ed.2d 114 (1993). The district court ordered the federal case reopened in February 1994. Mr. Cooks filed an amended habeas petition in May 1994. The court conducted an evidentiary hearing on the ineffective assistance of counsel issue in August 1995 and allowed the parties to brief the issues raised in the amended petition. In February 1997, the district court denied Mr. Cooks’ petition. Pursuant to the then recently enacted provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court granted Mr. Cooks a certificate of appealability on certain issues. Subsequent to the district court’s ruling, Lindh v. Murphy, 521 U.S. 320, -, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997), held that § 2253(c) of the AEDPA (pertaining to the certificate of appealability) applies only to cases filed after April 24, 1996. Because Mr. Cooks’ amended petition was filed before that date, the certificate of appealability is not a jurisdictional requirement in this case; rather, the district court or this court must issue a certificate of probable cause. Because we conclude Mr. Cooks has made a “substantial showing of the denial of [a] federal right,” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks and citation omitted), we grant a certificate of probable cause and proceed to consider all Mr. Cooks’ issues, applying pre-AEDPA law. DISCUSSION Mr. Cooks raises four primary issues on appeal from the denial of his habeas petition: (1) his post-arrest statements were involuntary and therefore inadmissible; (2) the “continuing threat” and “heinous, atrocious, or cruel” aggravating circumstances are unconstitutional and unsupported by sufficient evidence; (3) certain jury instructions concerning mitigating circumstances confused the jury and thus rendered his death sentence unconstitutional; and (4) he received ineffective assistance of counsel during both the guilt and" }, { "docid": "15989987", "title": "", "text": "F.3d 1246, 1247 (9th Cir.1999) (per curiam). Because Petitioner filed his petition before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), the provisions of that Act do not apply to the merits of this appeal. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). However, AEDPA’s procedural requirements do apply, because Petitioner filed his notice of appeal after the statute’s effective date. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000). DISCUSSION I. Petitioner’s Certificate of Probable Cause Before Congress enacted AEDPA, a party who wished to appeal a district court’s denial of a petition for habeas corpus was required to obtain a CPC, as Petitioner did in this ease. To obtain a CPC, a petitioner was required to make a “substantial showing of the denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). If a petitioner made such a showing as to any issue in his petition, then all the issues in the petition could be appealed. See Chacon v. Wood, 36 F.3d 1459, 1467 (9th Cir.1994). Congress changed that requirement with the passage of AEDPA, substituting the certificate of appealability (COA) for the CPC. Unlike a CPC, which allows a party to appeal an entire petition, a COA is granted on an issue-by-issue basis. A petitioner specifically must request a COA as to each issue that he or she wishes to appeal, and a court may not consider on appeal any issue not specified in a COA. See 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999). Before Slack v. McDaniel, the rule in this circuit was that the new requirement of a COA did not apply in cases that were filed in the district court before the effective date of AEDPA. See, e.g., Fuller v. Roe, 182 F.3d 699, 702-03 (9th Cir.1999) (as amended). Thus, a petitioner who filed a petition for habeas corpus before AED-PA was required in this circuit" }, { "docid": "15989986", "title": "", "text": "and 40 of Petitioner’s petition. Those claims address an error in a printed instruction that was given to the jury during the penalty phase. The magistrate judge recommended that those claims be granted and that Petitioner receive a new penalty-phase trial. On August 4, 1998, the magistrate judge issued Findings and Recommendations on Petitioner’s remaining claims. The magistrate judge recommended that those claims be denied. On June 3,1999, the district court issued an order granting the state’s motion for summary judgment as to all of Petitioner’s claims. The district court rejected the magistrate judge’s recommendation as to claims 36 and 40, concluding that the error in the jury instruction, if any, was harmless. The court adopted without discussion the magistrate judge’s recommendation that the remaining claims be denied. Petitioner then filed a request for a Certificate of Probable Cause (CPC), which the district court granted. This timely appeal followed. STANDARD OF REVIEW This court reviews de novo a district court’s decision to deny a petition under 28 U.S.C. § 2254. See McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999) (per curiam). Because Petitioner filed his petition before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), the provisions of that Act do not apply to the merits of this appeal. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). However, AEDPA’s procedural requirements do apply, because Petitioner filed his notice of appeal after the statute’s effective date. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000). DISCUSSION I. Petitioner’s Certificate of Probable Cause Before Congress enacted AEDPA, a party who wished to appeal a district court’s denial of a petition for habeas corpus was required to obtain a CPC, as Petitioner did in this ease. To obtain a CPC, a petitioner was required to make a “substantial showing of the denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). If a petitioner made such a showing as to" }, { "docid": "13744478", "title": "", "text": "PER CURIAM: Petitioner John Gary Hardwick moves for remand and relinquishment of jurisdiction or, in the alternative, a certificate of probable cause to appeal the district court’s denial of habeas corpus relief. The petition initially was filed in federal district court pursuant to 28 U.S.C. § 2254 on March 20, 1995. The district court denied the petition on February 24,1997 and, applying the relevant provision of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 120 Stat. 1214 (1996), now codified at 28 U.S.C. § 2253(c) (Supp.1997), issued a certificate of appealability as to three of Hardwick’s twenty claims for relief. Hardwick moves for remand on the ground that the district court erroneously analyzed his application to appeal under the AEDPA. Hardwick argues that the district court should have applied pre-AEDPA law regarding the issuance of a certificate of probable cause. In support of this argument, he avers that our recent en banc decision in Hunter v. United States, 101 F.3d 1565 (11th Cir.1996), cert. denied,-U.S.-, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997), has been overruled in part by the Supreme Court’s decision in Lindh v. Murphy,— U.S.-, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). To the extent that onr decision in Hunter stands for the proposition that the AEDPA provisions governing certificates of appealability apply to § 2254 cases pending on the date of the AEDPA’s enactment, we agree that the Supreme Court’s pronouncement in Lindh effectively abrogates and supplants that portion of Hunter. Lindh states that “the new provisions of chapter 153 generally apply only to cases filed after the Act became effective.” Id. at --, 117 S.Ct. at 2068. Moreover, in reversing the Seventh Circuit’s decision in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), the Court expressly noted our reliance in Hunter on the reasoning and analysis underlying the Seventh Circuit’s holding. See Lindh, — U.S. at-, 117 S.Ct. at 2061. We therefore hold, consistent with the clear directive of the Supreme Court in Lindh, that the AEDPA does not apply to habeas petitions that were pending at the time the new" }, { "docid": "22805194", "title": "", "text": "Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which the President signed into law on April 24, 1996. B. Notwithstanding AEDPA’s limited legislative history on this point, it is clear that Congress by amending § 2253 intended to codify in part the Court’s holding in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); see H.R. Report No. 104-23 (“Background and Need for the Legislation”). In Barefoot, the Court granted certiorari to determine whether the Court of Appeals for the Fifth Circuit erred in refusing to stay a state petitioner’s death sentence under a § 2254 proceeding. Id. at 888, 103 S.Ct. 3383. Reviewing the procedural actions of the court of appeals, the Court outlined the grounds for appealing the denial of a § 2254 petition: First. Congress established the requirement that a prisoner obtain a certificate of probable cause to appeal in order to prevent frivolous appeals from delaying the States’ ability to impose sentences, including death sentences. The primary means of separating meritorious from frivolous appeals should be the decision to grant or withhold a certificate of probable cause.... We agree with the weight of opinion in the Courts of Appeals that a certificate of probable cause requires petitioner to make a “substantial showing of the denial of [a] federal right.” Stewart v. Beto, 454 F.2d 268, 270, n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972). Barefoot, 463 U.S. at 893, 103 S.Ct. 3383 (alteration in original) (footnote omitted) (citing Ramsey v. Hand, 309 F.2d 947, 948 (10th Cir.1962); and Goode v. Wainwright, 670 F.2d 941 (11th Cir.1982)). There is no doubt that the current version of § 2253(c)(2) codified the Court’s holding in Barefoot that a petitioner must make a “substantial showing.” Congress, however, made a significant change to the Barefoot standard, “substituting the word ‘constitutional’ for the word ‘federal.’” Slack, 120 S.Ct. at 1603. The term “constitutional right” means something very different from the term “federal right,” and because we must assume that Congress “means in a statute what it says,” Connecticut" } ]

[ { "docid": "23003731", "title": "", "text": "receive too much. Given the present state of affairs, it is not unrealistic to expect that some deserving claimants will be unable to collect anything at all on their judgments. See Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1329 (5th Cir.1985) (Clark, C.J., dissenting). The unevenness of recovery is a characteristic of the common law tort system, a factor which we are not empowered to change in this case. That a crisis exists does not authorize us to alter existing state law theories of liability. See Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314 (5th Cir.1985) (in banc). We are asked to predict the future course of an uncharted area of Pennsylvania law and are to do so against the background of the asbestos scene. Even if it be assumed that in the abstract there is merit to enlarging the tort theory plaintiffs press here, the argument founders when resources appear inadequate even to compensate in circumstances where well accepted duty concepts have been violated. The climate for expansion is not propitious, and I believe the appellate courts of Pennsylvania will be wary in approaching the question thrust upon us in this case. Indeed, in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), and Berardi v. Johns-Manville Corp., — Pa.Super. —, 482 A.2d 1067 (1984), the Pennsylvania Superior Court rebuffed attempts to expand liability for negligent infliction of emotional distress. In those cases, recovery was denied for spouses who observed their husbands’ gradual development of asbestosis. In both instances, the court specifically declined to rule on claims of intentional infliction of emotional distress because the issue had not been specifically raised in the trial court. It is noteworthy that in the case at hand the plaintiffs’ efforts in the district court and initially on appeal were directed mainly toward the negligent infliction claim. While this appeal was pending, the Superi- or Court decided Cathcart. Conceding its applicability, plaintiffs were left with the intentional infliction count which apparently was more of an afterthought than a serious contention in the district court. The Pennsylvania courts have sanctioned" } ]

[ { "docid": "15407658", "title": "", "text": "by the Supreme Court of Pennsylvania’s issuance of a modified Rule 238, replacing the version Craig suspended. For this reason, we requested supplemental briefing and reargument on the issue of delay damages. Now, after consideration of all the arguments presented, we hold that Pennsylvania’s Rule 238 supplies the rule of decision for this case. The parties have not pressed any federal constitutional issue on the rule’s application to this case, and Ray-mark’s argument based on Pennsylvania’s state Constitution lacks merit. Therefore, we hold Rule 238 can be used to assess delay damages against Raymark. B. In accord with standard doctrine in diversity cases, we first consider whether a Pennsylvania forum would apply Pennsylvania or New Jersey law to assess and determine the amount of pre-judgment interest. This issue is complex and involves subtle analysis of the principles underlying Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), as that case is applied to the forum state’s rules on choice of law under Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). As Erie and its progeny have held, the substantive, or outcome-determinative law, of the state in which the federal court sits in diversity can be definitively determined only through controlling decisions of the supreme court of that state. Since those courts often do not speak clearly or precisely to the issue in question, a federal court sitting in diversity must often take on the mantle of the soothsayers of old and predict what the supreme court of a particular state would do if it were presented with the issue that controls the case before the federal court. Such contemporary predictions are just as chancy a business as the divination of dreams the heathen kings of ancient biblical lands so often called upon their counselors to interpret in the stories of the Old Testament. Like them, in taking on the task, we hope that our prophecy will find favor in the eyes of the authority that may one day brand it true or false. The inherently" }, { "docid": "15407661", "title": "", "text": "constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side. Klaxon, 313 U.S. at 496, 61 S.Ct. at 1021 (footnote omitted). Rules for ascertaining the measure of damages are “matters of substance,” id. at 495-96, 61 S.Ct. at 1021-22, for Erie purposes. The term “substantive” is further defined as “outcome determinative” in Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). Erie blends a theoretical base in concepts of positive law with an operative justification in the ideal that in our federal system diversity litigants should not be able to get a different outcome by filing their complaint in federal court. Perhaps simplistically, this ideal is summed up in the aphorism that Erie is meant to prevent forum shopping. We begin our own analysis with this Court’s holding that “the Pennsylvania law on delay damages in tort, whether awarded under the suspended rule, Craig or the present version of Rule 238 is substantive for purposes of Erie R.R. v. Tompkins. Therefore, under Erie, it must be followed by federal courts sitting in diversity cases.” Fauber v. KEM Transp. & Equip. Co., 876 F.2d 327, 328 (3d Cir.1989) (citation omitted); see also Rosen v. Rucker, 905 F.2d 702, 705 (3d Cir.1990); Savarese v. Agriss, 883 F.2d 1194, 1207 n. 21 (3d Cir.1989); Jarvis v. Johnson, 668 F.2d 740, 741 (3d Cir.1982). Our holding that Rule 238 is substantive follows from our prior determination that “the decision of a federal court to apply or not to apply Rule 238 is ‘outcome determinative.’ ” Jarvis, 668 F.2d at 745. Thus, it appears that a federal court attempting to determine whether Pennsylvania would apply its own rule on pre-judgment damages or that of another state, such as New Jersey, need look only to the principles that the Supreme Court of Pennsylvania has used to decide which state law to apply when the laws of two or more states with some connection to the litigation conflict. Generally, in deciding issues of conflict of laws, Pennsylvania follows a “flexible rule which permits" }, { "docid": "5223566", "title": "", "text": "We will now address the merits of these appeals, turning first to the arguments raised by Barris. IV. A. The issue raised by Barris’ appeal will not detain us long. In sum, although her motion for Rule 238 damages, timely filed on November 8, 1982, indicated that she was entitled to such damages from October 15, 1979 to November 1, 1982, it only requested damages from October 15, 1979 to October 15, 1982. Plaintiff admits that she miscalculated the amount requested, $247,500, yet she contends it was error for the district court to award only that amount. We will not reverse an award of Rule 238 delay damages unless there has been an abuse of discretion by the district court. American Enka Co. v. Wicaco Machine Corp., 686 F.2d 1050, 1057 (3d Cir.1982). We find no abuse where the court below gave plaintiff exactly what she requested. B. Bob’s appeal, on the other hand, raises issues that go to the heart of Rule 238. Preliminarily, we note that this rule was adopted in Pennsylvania in 1978 and has been upheld as constitutional, against due process and equal protection attacks, by both the Pennsylvania Supreme Court, Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), and this court, Insurance Federation of Pennsylvania, Inc. v. Supreme Court of Pennsylvania, 669 F.2d 112 (3d Cir.1982). It is also settled that the rule applies to federal diversity cases brought under Pennsylvania law. Jarvis v. Johnson, 668 F.2d 740 (3d Cir.1982). While we normally look to the rules of decision from Pennsylvania to resolve issues of Pennsylvania law, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), research indicates that the precise question raised by Bob’s is one of first impression. Accordingly, we approach this task of state court rule construction with the caution befitting a federal court compelled to apply the language to a particular factual situation for the first time. We look first to the language of Rule 238. It provides that, in a case such as this, delay damages shall be computed" }, { "docid": "15407668", "title": "", "text": "in a Pennsylvania forum. This prediction rejects the superficially appealing analysis that, because Rule 238 is substantive for purposes of the Erie doctrine, it is also substantive for choice of law purposes. We think that analysis is shallow for the following reasons. The Erie doctrine is meant to insure that diversity cases will have the same outcome, as far as possible, whether they are filed in a state court or a federal court sitting in the territory of that state. Since we predict that the Supreme Court of Pennsylvania would apply Rule 238 to all cases in its courts, Erie requires that a federal court sitting in Pennsylvania uniformly apply Rule 238 to determine the amount and availability of pre-judgment interest. Any conflict with our decision in Jarvis, 668 F.2d at 748, that Rule 238 is substantive, is only on the surface. More deeply plumbed, the present analysis fits squarely into Erie’s underlying philosophical and practical bases. The result that would follow from mechanical application of either the Klaxon “substantive” or Guaranty Trust “outcome determinative” label does not. D. We have predicted that the Supreme Court of Pennsylvania would direct its trial courts to apply Rule 238 uniformly to a determination of pre-judgment interest without regard to its usual rules on choice of law as expressed in Cipolla, 267 A.2d 854, and Griffith, 203 A.2d 796. Under our ruling in Fauber, 876 F.2d at 328, the current version of Rule 238 is applicable to the instant case because “the current version of Rule 238 must be applied to all cases pending on or after November 7, 1988, the date it was promulgated.” We must consider, therefore, whether the Yohannons can be awarded any pre-judgment interest under the current version of Pennsylvania Rule 238. When this case was first argued, new Rule 238 had not yet been adopted. Accordingly Raymark argued that under Craig, 515 A.2d at 1353, delay damages could not be awarded against it because the delay in this case was not caused by the defendant’s own actions. In Craig, the Supreme Court of Pennsylvania was concerned about the" }, { "docid": "15407683", "title": "", "text": "been much debate in the Pennsylvania courts over the constitutionality of the new rule, see, e.g., Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272, 1280 (1990) (Cirillo, P.J., concurring and dissenting) (rule exceeds rulemaking authority of state supreme court because it \"does no consider the fault of both the defendant and the plaintiff”); Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 235-36, 562 A.2d 875, 885 (1989) (Cirillo, P.J., dissenting) (rule unconstitutionally punishes defendant in the absence of fault); Craig, 512 Pa. at 66-67, 515 A.2d at 1354 (Hutchinson, J., concurring) (rule addresses substantive issues outside court’s rulemaking power), the Pennsylvania courts have thus far rejected constitutional attacks. See, e.g., Shellhamer v. Grey, 390 Pa.Super. 122, 568 A.2d 224, 228 (1989); Dietrich, 568 A.2d at 1279. .We recognize that reference to the law of some other states concerning delay damages would pose little conflict with the policy behind Rule 238. Indeed, choice of the New Jersey rule, as the district court did here, would have little immediate effect on the policies that underlie Rule 238 because New Jersey has adopted a rule requiring pre-judgment interest that, as does Rule 238, strongly encourages defendants to make prompt and reasonable settlement offers. The New Jersey rule, if anything, is more pro-plaintiff because it supplies a wholly no- fault rule for application of pre-judgment interest. See N.J.Ct.C.P.R. 4:42-11(b). . New Rule 238, adopted on November 7, 1988, provides, in pertinent part, that: (a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa. C.S. § 7361, and shall become part of the verdict, decision or award. (2) Damages for delay shall be awarded for the period of time (i) in an" }, { "docid": "5223567", "title": "", "text": "1978 and has been upheld as constitutional, against due process and equal protection attacks, by both the Pennsylvania Supreme Court, Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), and this court, Insurance Federation of Pennsylvania, Inc. v. Supreme Court of Pennsylvania, 669 F.2d 112 (3d Cir.1982). It is also settled that the rule applies to federal diversity cases brought under Pennsylvania law. Jarvis v. Johnson, 668 F.2d 740 (3d Cir.1982). While we normally look to the rules of decision from Pennsylvania to resolve issues of Pennsylvania law, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), research indicates that the precise question raised by Bob’s is one of first impression. Accordingly, we approach this task of state court rule construction with the caution befitting a federal court compelled to apply the language to a particular factual situation for the first time. We look first to the language of Rule 238. It provides that, in a case such as this, delay damages shall be computed from “a date six (6) months after the effective date of this rule,” Rule 238(f), “up to the date of award, verdict or decision,” Rule 238(a)(2). Bob’s claims that implicitly the rule is designed to award delay damages only to a plaintiff who has prevailed on the merits and that it, and not the plaintiff, must be considered the prevailing party from the date the complaint was filed until this court remanded for a new trial. Because the language of the rule does not-answer this concern, we must look to the rule’s purpose for guidance. Pennsylvania courts have explained that “the major purpose for placing damages for delay against a defendant who does not extend a reasonable settlement offer is to reduce congestion by encouraging early settlements.” Salat v. Western Pennsylvania Hospital, 13 Pa.D. & C.3d 82, 85 (1982) (Allegheny County, Wettick, J.). In its explanatory note to Rule 238, the Pennsylvania Supreme Court’s Procedural Rules Committee recognized that “[t]he judicial system has long been vexed by the problem of congestion and delay in the" }, { "docid": "15407673", "title": "", "text": "of Rule 238 meets the due process concerns expressed in Craig under the Pennsylvania Constitution’s analogy to due process. However, the adoption of the new version of the rule by the Supreme Court of Pennsylvania and the decisions of the Superior Court of Pennsylvania interpreting and upholding it lead us to predict that the Supreme Court of Pennsylvania will uphold it as a matter of Pennsylvania constitutional law. See Rosen, 905 F.2d at 705, (listing Pennsylvania authority); The Continuing Debate, supra (outlining the continuing controversy about new Rule 238). F. In summary, we hold that the present version of Rule 238 is substantive for Erie purposes but predict that the Supreme Court of Pennsylvania will hold that it applies to all cases brought in the courts of that state and refuse to apply Pennsylvania’s usual choice of law rules to issues of delay damages because of the forum-protective features of the rule. We go on to hold that the current version of the rule applies to this case, that any question as to the constitutionality of its application to this case under the Due Process Clause of the Fourteenth Amendment or otherwise under the United States Constitution is waived and that the decisions of the Supreme Court of Pennsylvania, coupled with strong supporting evidence of state law in the decisions of the Superior Court of Pennsylvania, establish the rule’s constitutionality under that state’s constitution. Accordingly, on remand, the district court will compute delay damages in this case under and in accordance with the currently applicable version of Rule 238. VIII. Conclusion For the reasons given above, we will affirm the judgment in the amount of $130,254.80 entered against Raymark on the jury’s verdict. We will, however, remand the case to the district court for such further proceedings as are necessary to include delay damages computed in accord with Pennsylvania Rule of Civil Procedure 238. . Mr. Yohannon also testified that DuPont offered several incentives to retire in 1984, but because his children’s college expenses had depleted his savings, he could not afford to do so at that time. App. at" }, { "docid": "15407672", "title": "", "text": "of such concerns under the new version of Rule 238 in our recent opinion in Rosen, 905 F.2d at 705. However, at the reargument of this case, counsel for Ray-mark conceded that the current version of Rule 238 posed no federal constitutional problems on this record and declined to argue that point further. Accordingly, Raymark has waived all federal constitutional issues, and we will not consider them. On reargument, Raymark did argue that new Rule 238 is unconstitutional under the Pennsylvania Constitution and asked us to predict that the Supreme Court of Pennsyl vania would ultimately hold that it lacked power to adopt Rule 238 in its current form because that version of the rule violates the rulemaking authority of the Supreme Court under Pennsylvania Constitution art. 5, § 10. We decline Raymark’s invitation. All the Pennsylvania authority that we have uncovered leads us to predict the contrary. See, e.g., Craig, 515 A.2d at 1353 (citing Laudenberger, 436 A.2d 147). As a matter of first impression, questions might be raised about whether the present version of Rule 238 meets the due process concerns expressed in Craig under the Pennsylvania Constitution’s analogy to due process. However, the adoption of the new version of the rule by the Supreme Court of Pennsylvania and the decisions of the Superior Court of Pennsylvania interpreting and upholding it lead us to predict that the Supreme Court of Pennsylvania will uphold it as a matter of Pennsylvania constitutional law. See Rosen, 905 F.2d at 705, (listing Pennsylvania authority); The Continuing Debate, supra (outlining the continuing controversy about new Rule 238). F. In summary, we hold that the present version of Rule 238 is substantive for Erie purposes but predict that the Supreme Court of Pennsylvania will hold that it applies to all cases brought in the courts of that state and refuse to apply Pennsylvania’s usual choice of law rules to issues of delay damages because of the forum-protective features of the rule. We go on to hold that the current version of the rule applies to this case, that any question as to the constitutionality" }, { "docid": "23344557", "title": "", "text": "would indeed be ironic if the plaintiffs were denied back pay because they were unable to work when the defendants' actions caused the disability. Accordingly, we reject the defendants’ challenge based on the Supreme Court’s recognition that “the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights,\" Carey v. Piphus, 435 U.S. 247, 253-54, 98 S.Ct. 1042, 1046-47, 55 L.Ed.2d 252 (1978) (emphasis added), and that \"Congress intended that awards under § 1983 should deter the deprivation of constitutional rights.” 435 U.S. at 256, 98 S.Ct. at 1048. . The method for calculating damages under Rule 238 changed twice during the course of the litigation. Because we hold that the Pennsylvania law is not applicable here, the issue of which version applies is not before us. . Were this Court sitting in diversity, Pennsylvania law would apply. See Poleto, 826 F.2d at 1274 n. 6 (‘‘This is to be contrasted with the situation where federal jurisdiction is predicated upon diversity of citizenship; there, matters of prejudgment interest are considered substantive and are governed by state law.\") (citing Jarvis v. Johnson, 668 F.2d 740, 746-47 (3d Cir.1982)). . The Pennsylvania Supreme Court amended Rule 238, to provide among other changes, a different method for computation of interest. The amendment took effect November 7, 1988. .We have recognized that delay caused by a party is a factor to be considered. See Poleto, 826 F.2d at 1279 n. 16 (recognizing that it may be appropriate to limit or even deny prejudgment interest where the plaintiff has been responsible for undue delay in prosecuting the lawsuit); see also id. at 1276 n. 10 (recognizing delay as a reason for awarding prejudgment interest as it tends to discourage defendants from “pursuing the tactical delay that prompts plaintiffs to settle on more favorable terms” — a rationale which we noted is \"similar to that underlying Pennsylvania Rule of Civil Procedure 238.\"). Thus, the district court is free to consider delay as a factor on remand. . These actions are entitled MCTA v. Savarese," }, { "docid": "15407671", "title": "", "text": "application of the new version of the rule to any cases pending at its adoption. The new version was designed to cure the problem of unfairness noted in Craig. Whether it fully does so remains disputed, but, still, it does ameliorate at least some of the unfairness of the original rule. See Note, The Continuing Debate over Delay Damages: Pennsylvania’s New Rule 238, 35 Vill.L.Rev. 457 (1990) (hereinafter The Continuing Debate ). Therefore, we reject Raymark’s argument based on Craig. E. As we have held that Pennsylvania would apply its own rule on delay damages, we must deal with Raymark’s constitutional attacks on Rule 238. Since Raymark did not make a settlement offer that met the requirements of Rule 238, it is liable for pre-judgment interest computed in accord with the version of Rule 238 promulgated on November 7, 1988, unless application of that rule to the circumstances of this case would run afoul of the due process and equal protection concerns expressed in Craig, 515 A.2d at 1352-53. We have noted the continuing presence of such concerns under the new version of Rule 238 in our recent opinion in Rosen, 905 F.2d at 705. However, at the reargument of this case, counsel for Ray-mark conceded that the current version of Rule 238 posed no federal constitutional problems on this record and declined to argue that point further. Accordingly, Raymark has waived all federal constitutional issues, and we will not consider them. On reargument, Raymark did argue that new Rule 238 is unconstitutional under the Pennsylvania Constitution and asked us to predict that the Supreme Court of Pennsyl vania would ultimately hold that it lacked power to adopt Rule 238 in its current form because that version of the rule violates the rulemaking authority of the Supreme Court under Pennsylvania Constitution art. 5, § 10. We decline Raymark’s invitation. All the Pennsylvania authority that we have uncovered leads us to predict the contrary. See, e.g., Craig, 515 A.2d at 1353 (citing Laudenberger, 436 A.2d 147). As a matter of first impression, questions might be raised about whether the present version" }, { "docid": "15407664", "title": "", "text": "238 was adopted by the Supreme Court of Pennsylvania under its constitutional power to make rules of procedure governing the administration of Pennsylvania’s court system and the rules of practice in the state’s courts. See Pa. Const, art. 5, § 10. Its purpose was to encourage settlements and reduce a severe backlog of civil cases sounding in tort. See Jarvis, 668 F.2d at 745. From Rule 238’s first adoption, the Supreme Court of Pennsylvania has insisted that the imposition of delay damages under Rule 238 is a matter of procedure. See Laudenberger v. Port Authority, 496 Pa. 52, 436 A.2d 147, 155 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). This insistence continues and is reflected in the 1988 changes made in Rule 238 to meet the potential constitutional problems the Supreme Court of Pennsylvania found lurking in the original version of the rule because of its strict application against defendants whose actions had no relation to any delay in payment. See Craig, 515 A.2d at 1353. The Supreme Court of Pennsylvania has remained steadfast in its position that Rule 238 is procedural despite strong dissents and concurrences arguing that Rule 238 is not authorized by Article 5, § 10 of the Pennsylvania Constitution because it affects the substantive law of damages. The Supreme Court of Pennsylvania justifies its conclusion that Rule 238 is procedural, within the meaning of the provisions of that state’s constitution that give it power to make procedural rules, by referring to the long delays in resolving civil eases that plague Pennsylvania’s urban and suburban forums and the consequent need to encourage early settlements, particularly in personal injury cases. See Laudenberger, 436 A.2d at 150-51. Rule 238 attacks these problems by depriving defendants or their insurers of any incentive to delay settlement so that they, rather than injured persons, can, during the delays, enjoy the income from monies that should have been used to effect a prompt and reasonable settlement of pending cases. Id. Consistent with its wish to remove the incentive for delay and to prevent manipulation of the system" }, { "docid": "15407670", "title": "", "text": "equal protection implications of applying old Rule 238 to cases in which a delay in settlement was caused by the plaintiff’s unreasonable action and not by the defendant. It suspended the rule and said: In making a decision on a plaintiff’s entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors. Craig, 515 A.2d at 1353 (footnote omitted). Raymark originally contended it caused no delay in the pre-trial process and therefore it cannot be held responsible for any pre-judgment interest or delay damages under the principles of Rule 238. This argument has lost much of its force. Since we first heard this case, the Supreme Court of Pennsylvania has adopted a new version of Rule 238. We held in Fauber, 876 F.2d at 328, that Erie required application of the new version of the rule to any cases pending at its adoption. The new version was designed to cure the problem of unfairness noted in Craig. Whether it fully does so remains disputed, but, still, it does ameliorate at least some of the unfairness of the original rule. See Note, The Continuing Debate over Delay Damages: Pennsylvania’s New Rule 238, 35 Vill.L.Rev. 457 (1990) (hereinafter The Continuing Debate ). Therefore, we reject Raymark’s argument based on Craig. E. As we have held that Pennsylvania would apply its own rule on delay damages, we must deal with Raymark’s constitutional attacks on Rule 238. Since Raymark did not make a settlement offer that met the requirements of Rule 238, it is liable for pre-judgment interest computed in accord with the version of Rule 238 promulgated on November 7, 1988, unless application of that rule to the circumstances of this case would run afoul of the due process and equal protection concerns expressed in Craig, 515 A.2d at 1352-53. We have noted the continuing presence" }, { "docid": "15407657", "title": "", "text": "of law in diversity cases, Raymark reasons that the district court erred in using New Jersey Civil Practice Rule 4:42-11 to compute pre-judgment interest and should have applied Pennsylvania Rule of Civil Procedure 238, which governs pre-judgment interest in Pennsylvania. We agree and will vacate this aspect of the district court’s judgment and remand to permit the district court to reevaluate delay damages under Rule 238. A. Raymark initially contended that the Yohannons are not entitled to pre-judgment interest. At the time, the Supreme Court of Pennsylvania had suspended as unconstitutional the “mandatory provisions of Rule 238 which assess delay damages against defendants without regard to fault.” Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350, 1353 (1986). The Yohannons simply argue that our decision in Salas ex rel. Salas v. Wang, 846 F.2d 897 (3d Cir.1988), requires the use of New Jersey law on pre-judgment interest whenever New Jersey’s substantive law of damages applies. Since we first heard oral argument in this case, our analysis of this issue has been affected by the Supreme Court of Pennsylvania’s issuance of a modified Rule 238, replacing the version Craig suspended. For this reason, we requested supplemental briefing and reargument on the issue of delay damages. Now, after consideration of all the arguments presented, we hold that Pennsylvania’s Rule 238 supplies the rule of decision for this case. The parties have not pressed any federal constitutional issue on the rule’s application to this case, and Ray-mark’s argument based on Pennsylvania’s state Constitution lacks merit. Therefore, we hold Rule 238 can be used to assess delay damages against Raymark. B. In accord with standard doctrine in diversity cases, we first consider whether a Pennsylvania forum would apply Pennsylvania or New Jersey law to assess and determine the amount of pre-judgment interest. This issue is complex and involves subtle analysis of the principles underlying Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), as that case is applied to the forum state’s rules on choice of law under Klaxon Co. v. Stentor Elec. Mfg. Co.," }, { "docid": "23344527", "title": "", "text": "to recover from the defendants damages for delays in bringing the case to trial pursuant to Pennsylvania Rule of Civil Procedure 238. On September 9, 1988, the district court awarded Savarese and Flaxman a total of $5,966.07 in delay damages pursuant to Rule 238. In briefing the issue, neither party questions whether Pennsylvania substantive law applies with regard to the determination of prejudgment interest, and both parties proceed on the assumption that it does apply. The parties devote much attention to the issue of which version of the Pennsylvania Rule applies. However, the assumption that Pennsylvania law applies is contrary to our decision in Poleto v. Consolidated Rail Corp., 826 F.2d 1270 (3d Cir.1987), where we held that “the availability of interest in an action arising under a federal statute is governed by federal law, not the law of the forum state.” Id. at 1274 (citing Carver v. Consolidated Rail Corp., 600 F.Supp. 125, 125-26 (E.D.Pa.1984)); see also Garrick v. City and County of Denver, 652 F.2d 969, 971 (10th Cir.1981) (“Federal standards govern the determination of damages under the federal civil rights statutes.”) (citations omitted). The plaintiffs in Poleto similarly urged this Court to apply Pennsylvania Rule of Civil Procedure 238 which allows prejudgment interest. 826 F.2d at 1274. We held that “[bjecause [the plaintiffs] claim ... is predicated upon a violation of a federal statute, state substantive law, particularly Pennsylvania Rule of Civil Procedure 238, is not implicated.” (citation omitted). Instead, we stated that “[a]ny claim to prejudgment interest must therefore be derived from federal statutory sources.” 826 F.2d at 1274. More particularly, this Court has on a prior occasion noted the importance of federal uniformity in awarding damages under section 1983. See Basista v. Weir, 340 F.2d 74 (3d Cir.1965). In Basista, we stated that: We believe that the benefits of the [Civil Rights] Acts were intended to be uniform throughout the United States, that the protection to the individual to be afforded by them was not intended by Congress to differ from state to state, and that the amount of damages to be recovered by the" }, { "docid": "8919765", "title": "", "text": "Plaintiffs have requested both statutory delay damages and common law prejudgment interest. The result of granting both kinds of interest would be duplication of damages, which Pennsylvania law prohibits. Dean Witter Reynolds, Inc. v. Genteel, 346 Pa.Super. 336, 499 A.2d 637 (1985), allocatur denied, 514 Pa. 635, 522 A.2d 1105 (1987) and 514 Pa. 639, 523 A.2d 346 (1987); American Enka Co. v. Wicaco Mach. Corp., 686 F.2d 1050, 1057 (3d Cir.1982). Whether plaintiffs are entitled to one or the other type of interest is discussed below. A. Delay Damages Plaintiffs seek delay damages under Rule 238 of the Pennsylvania Rules of Civil Procedure. Contrary to plaintiffs' interpretation of the record, this Court has not ruled on this issue previously. In addressing the post-trial motions from the first trial, Judge Teitelbaum held that delay damages were appropriate. Loughman v. Consol Pa. Coal Co., et al., No. 83-921 slip op. at 4 (W.D.Pa. October 22, 1987). Our analysis of the case law leads us to the opposite conclusion and we will deny plaintiffs’ motion for delay damages. Rule 238 provides for mandatory interest on compensatory damage awards arising from bodily injury, death or property damage, which interest is to be calculated from the date of the complaint. Plaintiffs’ damages' do not arise from bodily injury, death or property damage. These cases do not present the kind of damage to tangible property anticipated by Rule 238. They arise from fraud in the making of contracts. We find them to be tort cases and similar to an action for tortious interference with a contract in that they allege lost profits from the sale of property. Rule 238 does not apply to cases involving lost prof its or income. Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 655, 557 A.2d 730, 741 (1989), allocatur denied, 523 Pa. 646, 567 A.2d 650 (1989); Temporaries Inc. v. Krane, 325 Pa.Super. 103, 115, 472 A.2d 668, 674 (1984); Contractor Utility Sales Cos. v. Certain-Teed Corp., 748 F.2d 1151, 1157 (7th Cir.1984) (applying Pennsylvania law) (Dumbauld, J.), cert. denied, 470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785" }, { "docid": "22173993", "title": "", "text": "S.Ct. 795, 102 L.Ed.2d 787 (1989). We review the district court’s order granting new trial for abuse of discretion. United States v. 27.93 Acres of Land, 924 F.2d 506, 516 (3d Cir.1991). III. We turn first to the question whether the district court properly granted the defendant’s motion for judgment n.o.v. At issue is whether the plaintiff’s action was barred by the statute of limitations. As we noted in Vernau v. Vic’s Market, Inc., 896 F.2d 43, 45 (3d Cir.1990), “state tolling principles are generally to be used by a federal court when it is applying a state limitations period.\" In this diversity action, therefore, we must look to Pennsylvania law and predict how the Pennsylvania Supreme Court would decide this case. See Commissioner v. Estate of Bosch, 387 U.S. 456, 464-65, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967); Tiernan v. Devoe, 923 F.2d 1024, 1033 (3d Cir.1991). The decisions of the Pennsylvania Superior Court, “while not controlling, are ‘indicia of how the [Pennsylvania Supreme Court] might decide’ the issue.” McNasby v. Crown Cork & Seal Co., Inc., 888 F.2d 270, 281 (3d Cir.1989) (quoting McGowan v. University of Scranton, 759 F.2d 287, 291 (3d Cir.1985)), cert. denied, 494 U.S. 1066, 110 S.Ct. 1783, 108 L.Ed.2d 784 (1990). A. The Pennsylvania statute of limitations for medical malpractice actions is two years. 42 Pa.Cons.Stat.Ann. § 5524(2) (Purdon Supp.1991). The statute of limitations begins to run as soon as the underlying cause of action accrues. Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468 (1983). Most tort causes of action, including those involving medical malpractice, accrue when the injury is sustained. Levenson v. Souser, 384 Pa.Super. 132, 143-44, 557 A.2d 1081, app. denied, 524 Pa. 621, 571 A.2d 383 (1989). Once a cause of action has accrued and the statutory period for bringing the action has expired, an injured party is barred from bringing suit unless the statute of limitations has been tolled. Pocono, 503 Pa. at 85, 468 A.2d 468. Over the years, Pennsylvania courts have developed certain tolling principles to “ameliorate the sometimes-harsh" }, { "docid": "5223568", "title": "", "text": "from “a date six (6) months after the effective date of this rule,” Rule 238(f), “up to the date of award, verdict or decision,” Rule 238(a)(2). Bob’s claims that implicitly the rule is designed to award delay damages only to a plaintiff who has prevailed on the merits and that it, and not the plaintiff, must be considered the prevailing party from the date the complaint was filed until this court remanded for a new trial. Because the language of the rule does not-answer this concern, we must look to the rule’s purpose for guidance. Pennsylvania courts have explained that “the major purpose for placing damages for delay against a defendant who does not extend a reasonable settlement offer is to reduce congestion by encouraging early settlements.” Salat v. Western Pennsylvania Hospital, 13 Pa.D. & C.3d 82, 85 (1982) (Allegheny County, Wettick, J.). In its explanatory note to Rule 238, the Pennsylvania Supreme Court’s Procedural Rules Committee recognized that “[t]he judicial system has long been vexed by the problem of congestion and delay in the disposition of civil actions for bodily injury, death or property damages pending in the trial courts” and that a major cause for the congestion and delay is that the “present practice provides no incentive for early settlement” so that “in too many cases meaningful negotiations commence only after a trial date is fixed or on the courthouse steps or in the courtroom, thus leading to delay in the disposition of cases and congestion in the courts.” Landenberger, 496 Pa. at 58, 436 A.2d at 150-51, quoting 8 Pa. Bulletin 2668 (1968). The drafters then designed the rule to serve the purpose of stimulating early settlement of claims and thereby reduce congestion in the courts by providing a financial incentive to defendants to settle meritorious claims early. The Pennsylvania Supreme Court also instructs that the rule “clearly reflects a primary desire to encourage pre-trial settlement.” Id. at 59, 436 A.2d at 151, and that “this provision demonstrates the prominent goal of fostering early settlements.” Id. We therefore conclude that the primary purpose for the rule is" }, { "docid": "15407663", "title": "", "text": "analysis of the policies and interests underlying the particular issue before the court,” Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796, 805 (1964), as set forth in Restatement (Second) of Conflict of Laws § 6 (1971). See also Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970); Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966); McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677 (1966). These cases show, and the parties concede, that the district court was correct in concluding that the Supreme Court of Pennsylvania would apply New Jersey law to decide “substantive” issues of liability and damages. Nevertheless, the application of New Jersey law to liability and damages does not necessarily control Pennsylvania’s choice of law on delay damages. A more searching examination of the Supreme Court of Pennsylvania precedents on delay damages is needed to decide whether that state would follow general choice of law principles in deciding whether to use its own or foreign law on the availability and amount of delay damages. C. Rule 238 was adopted by the Supreme Court of Pennsylvania under its constitutional power to make rules of procedure governing the administration of Pennsylvania’s court system and the rules of practice in the state’s courts. See Pa. Const, art. 5, § 10. Its purpose was to encourage settlements and reduce a severe backlog of civil cases sounding in tort. See Jarvis, 668 F.2d at 745. From Rule 238’s first adoption, the Supreme Court of Pennsylvania has insisted that the imposition of delay damages under Rule 238 is a matter of procedure. See Laudenberger v. Port Authority, 496 Pa. 52, 436 A.2d 147, 155 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). This insistence continues and is reflected in the 1988 changes made in Rule 238 to meet the potential constitutional problems the Supreme Court of Pennsylvania found lurking in the original version of the rule because of its strict application against defendants whose actions had no relation to any delay in payment. See Craig, 515 A.2d at 1353. The Supreme Court" }, { "docid": "15407634", "title": "", "text": "the sufficiency of the evidence supporting certain elements of the jury’s liability and damage findings. It also attacks the district court’s refusal to permit one of its proposed witnesses to testify. Finally, Ray-mark challenges the rule of decision on pre-judgment interest. Although sitting in diversity as a Pennsylvania forum, the district court applied New Jersey law to all aspects of this case, including the computation of pre-judgment interest. This amount was determined in accord with the New Jersey court rule governing assessment of delay damages. The Company argues that the district court erred in applying New Jersey law to the issue of pre-judgment interest, since a Pennsylvania forum would have chosen to apply Pennsylvania law on pre-judgment interest, rather than the New Jersey court rule. Furthermore, Raymark argues that a Pennsylvania court would not have allowed pre-judgment interest in this case. We will affirm the district court’s judgment in all respects except for its use of New Jersey law in computing delay damages. On that question, we hold that Pennsylvania law applies, that the applicable law is Pennsylvania Rule of Civil Procedure 238, that Rule 238 requires pre-judgment interest in this case and that this record presents no state or federal constitutional impediment to Rule 238’s application. Therefore, we will remand this matter for the district court to compute delay damages or pre-judgment interest under the current version of Rule 238 and modify its judgment accordingly. I. Procedural History This suit began on October 2, 1985, when the Yohannons filed a complaint in the district court seeking damages against ten asbestos companies for asbestos-related injuries and loss of consortium. The complaint alleged that Robert Yohannon was injured by his exposure to asbestos while employed at DuPont. A jury trial began on November 9, 1987, and by the close of the second day all defendants except Ray-mark had settled. On November 13, 1987, the jury found in favor of the Yohannons and determined that they had suffered $344,000 in total damages. The jury, through its answers to interrogatories, separated the damage award into five parts: (1) Past Lost Wages — $70,000;" }, { "docid": "15407669", "title": "", "text": "label does not. D. We have predicted that the Supreme Court of Pennsylvania would direct its trial courts to apply Rule 238 uniformly to a determination of pre-judgment interest without regard to its usual rules on choice of law as expressed in Cipolla, 267 A.2d 854, and Griffith, 203 A.2d 796. Under our ruling in Fauber, 876 F.2d at 328, the current version of Rule 238 is applicable to the instant case because “the current version of Rule 238 must be applied to all cases pending on or after November 7, 1988, the date it was promulgated.” We must consider, therefore, whether the Yohannons can be awarded any pre-judgment interest under the current version of Pennsylvania Rule 238. When this case was first argued, new Rule 238 had not yet been adopted. Accordingly Raymark argued that under Craig, 515 A.2d at 1353, delay damages could not be awarded against it because the delay in this case was not caused by the defendant’s own actions. In Craig, the Supreme Court of Pennsylvania was concerned about the equal protection implications of applying old Rule 238 to cases in which a delay in settlement was caused by the plaintiff’s unreasonable action and not by the defendant. It suspended the rule and said: In making a decision on a plaintiff’s entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors. Craig, 515 A.2d at 1353 (footnote omitted). Raymark originally contended it caused no delay in the pre-trial process and therefore it cannot be held responsible for any pre-judgment interest or delay damages under the principles of Rule 238. This argument has lost much of its force. Since we first heard this case, the Supreme Court of Pennsylvania has adopted a new version of Rule 238. We held in Fauber, 876 F.2d at 328, that Erie required" } ]

[ { "docid": "3475926", "title": "", "text": "enhancement. Thus, we vacate Gomez’s sentence and remand for resentencing. AFFIRMED in part and VACATED in part, and REMANDED. . 8 U.S.C. § 1326(a) provides that \"any alien who — (1) has been denied admission, excluded, deported, or removed ... and thereafter (2) enters, attempts to enter, or is at any time found in, the United States [barring some exceptions] ... shall be fined under Title 18, or imprisoned not more than 2 years [subject to enhanced penalties under § 1326(b) ], or both.” We have recognized that \"the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ('IIRIRA') amended the immigration statutes so as to eliminate the previous legal distinction between deportation, removal and exclusion, merging all of these proceedings into a broader category entitled 'removal proceedings.’ ” United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir.1999) (footnote omitted) (citing United States v. Pantin, 155 F.3d 91, 92 (2d Cir.1998)). We refer to Gomez's \"removal\" proceedings, though we note that 8 U.S.C. § 1326(d) and other cases we cite sometimes refer to \"deportation” proceedings. \"[A]ny distinction between deportation and removal is legally insignificant for purposes of § 1326.” Id. at 935. . According to the pre-sentence report prepared for sentencing, Gomez completed the sixth grade in Mexico and is able to read and write in Spanish, but unable to communicate in English. . The PSR used the 2010 United States Sentencing Commission Guidelines Manual. Pursuant to § 2L1.2(b)(l)(D), if Gomez’s Arizona conviction had not qualified as a crime of violence, his base offense level likely would have been increased by only four levels, rather than sixteen, yielding a total offense level of ten, rather than twenty-two. . Nor did Medina overrule our long-established precedent merely by saying that \"[i]n order to collaterally attack his prior deportation, Medina must show that the deportation hearing was fundamentally unfair and that he was prejudiced by the error.” 236 F.3d at 1031 (emphasis added). At most, this statement merely reiterates the statutory requirement that the alien \"demonstrate” the prongs of § 1326(d) and prove prejudice. See Reyes-Bonilla, 671 F.3d at 1039. ." } ]

[ { "docid": "21348460", "title": "", "text": "three counts of felony indecent liberties with a child, see N.C. Gen. Stat. Ann. § 14-202.1, arising from Moreno-Tapia’s consensual relationship with a fifteen-year old girl when he was twenty-one. Moreno-Tapia pleaded guilty and was sentenced to 15 to 18 months’ imprisonment. At the plea hearing, the court instructed Moreno-Tapia that he would be required to register as a sex offender after his release from prison. But Moreno-Tapia alleges that he was not informed of the immigration consequences of his guilty plea by his attorney or by the court. Although his plea document noted that deportation was a possible consequence, Moreno-Tapia did not sign the plea document and claims he never saw a copy of it. Second, while Moreno-Tapia was serving his state sentence, DHS initiated removal proceedings, on the ground that his indecent liberties convictions qualified as aggravated felonies subjecting him to deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii). Because Moreno-Tapia was never lawfully admitted to the United States for permanent residence, he was subject to an expedited removal process. See 8 U.S.C. § 1228(b); Etienne v. Lynch, 813 F.3d 135, 138-40 (4th Cir. 2015) (describing expedited removal process). Instead of being afforded a hearing before an immigration judge, Moreno-Tapia was served with a Notice of Intent to Issue a Final Administrative Removal Order (“NOI”), indicating that DHS would enter a final removal order and that Moreno-Tapia had ten days to rebut the charge in writing. See 8 C.F.R. § 238.1(b)(2)(i); Etienne, 813 F.3d at 138-39. Moreno-Tapia did not contest the charge and instead requested that he be removed to Mexico. In March of 2009, soon after service of a final removal order and Moreno-Tapia’s release from state prison, DHS deported Moreno-Tapia. C. At some point prior to 2011, Moreno-Tapia reentered the United States without permission and returned to North Carolina. He did not register as a sex offender under SORNA, despite his convictions for a qualifying sex offense. A subsequent arrest revealed him to the authorities and led to the current federal proceeding. In June 2014, Moreno-Tapia was indicted in the Middle District of North Carolina on two charges:" }, { "docid": "21348480", "title": "", "text": "no similar express exception for vacated convictions “compels” a different result. Luna-Diaz, 222 F.3d at 5; see Garcia-Lopez, 375 F.3d at 588-89. We agree with this persuasive line of authority. And indeed, Moreno-Tapia himself does not really.take issue with this straightforward reading of § 2L1.2. Instead, he argues that there should be an exception to the general rule that § 2L1.2 reaches convictions valid at the time of deportation for convictions that subsequently are vacated on constitutional grounds. For support, he points to Luna-Diaz, which leaves open the possibility of such an exception, noting that “allowing § 2L1.2(b)’s enhancement to rest on a prior conviction vacated as a result of a constitutional infirmity, egregious error of law, or determination of innocence, might in some limited circumstances raise constitutional due process concerns.” 222 F.3d at 6 n.5. We similarly left the question open in our unpublished decision in Moran-Rosario, recognizing the potential exception flagged in Luna-Diaz but finding that any such exception was not implicated on the facts of that case. 466 Fed.Appx. at 258-59. We again have no occasion to decide the issue. As explained above, because Padilla does not apply retroactively, Moreno-Ta-pia’s state convictions were not unconstitutionally obtained. Nor, as the district court emphasized, has Moreno-Tapia contended that he is actually innocent of the state indecent liberties charges. Accordingly, application of § 2L1.2’s 12-level enhancement does not implicate the potential due process concerns articulated in Luna-Diaz and Moran-Rosario. Cf. Garcia-Lopez, 375 F.3d at 589 (applying § 2L1.2 enhancement where conviction vacated on state-law grounds). Under these circumstances, the district court correctly applied § 2L1.2’s 12-level increase to Moreno-Tapia’s offense level, and we affirm its sentencing determination. III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED . The terms \"deportation” and \"removal” are interchangeable for purposes of § 1326. United States v. Gomez, 757 F.3d 885, 891 n.1 (9th Cir. 2014). While § 1326(a) refers, inter alia, to an alien who has been \"deported” or \"excluded,” the subsequently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 combined those once distinct proceedings into a" }, { "docid": "22597961", "title": "", "text": "immigration statutes is governed by the two-step test of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Onwuneme v. INS, 67 F.3d 273, 275 (10th Cir.1995); accord Bell, 218 F.3d at 90; Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir.2000); Lewis, 194 F.3d at 544. But see Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000) (holding review of INS’s interpretation of 8 U.S.C. § 1252(a)(2)(C) is de novo because a determination of jurisdiction is solely for the court to decide). We first apply de novo review in determining whether the plain language of the applicable statutory provisions clearly demonstrates Congress’s intent. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; Onwuneme, 67 F.3d at 275. If, however, the statute is subject to varying interpretations because it is “silent or ambiguous with respect to the specific issue,” we must determine “whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. As long as the interpretation is reasonable, we must defer to the agency’s construction of the statute even though it may not conform with how we would interpret the statute in an original judicial proceeding. Id. Because the statute that Mr. Tapia-Garcia challenges is arguably subject to differing interpreta tions, we will defer to the BIA’s interpretation provided it is reasonable. Y. Removability by Reason of Having Committed a Criminal Offense Because Mr. Tapia-Garcia does not dispute that he is an alien, the only jurisdictional fact left for our review under 8 U.S.C. § 1252(a)(2)(C) is whether Mr. Tapia-Garcia is removable by reason of having committed an aggravated felony under the relevant statutes. The BIA affirmed the immigration judge’s decision that Mr. Tapia-Garcia is deportable by reason of having committed an aggravated felony as provided in 8 U.S.C. § 1227(a)(2)(A)(iii). In the immigration context, the term aggravated felony is defined by the various offenses described in 8 U.SC. § 1101(a)(43). The definition" }, { "docid": "21760058", "title": "", "text": "imprisonment of one year or longer, within five years of her admission to the United States, is deportable. Under 8 U.S.C. § 1227(a)(2)(A)(ii), any noncitizen who is convicted of two CIMTs at any time after her admission to the U.S. is deportable. The concept of CIMT has no statutory definition; it is shaped through case law. Courts look to the “elements of the statutory state offense, not to-the specific facts,” to determine whether, the conviction at issue constitutes a CIMT. Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (quoting Wilson v. Ashcroft, 350 F.3d 377, 381-82 (3d Cir. 2003). In reviewing the statute the court should credit “the least culpable conduct necessary to sustain a conviction under the statute.” Id. (citing Matter of Marchena, 12 I. & N. Dec. 355, 357, 1967 WL 14033 (BIA 1967)). Only where a statute is “divisible,” that is, it covers both conduct involving moral turpitude, and conduct that does not, does the court -refer to the record, “to determine whether the alien was convicted under that part of the statute defining a crime involving moral turpitude.” Partyka v. Attorney General of U.S., 417 F.3d 408, 411 (3d Cir. 2005); see, e.g. Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005) ' CIMTs involve conduct that is “inherently base, vile, or depraved” and which is done with a criminal intent. See Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (“In a series of published decisions, the BIA has set forth its general understanding that a ‘crime involving moral turpitude’ involves ‘conduct that shocks the public conscience as being inherently base,' vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.’ ”) (quoting In re Perez-Contreras, 20 I. & N. Dec. 615, 618 (B.I.A.1992)); Partyka, 417 F.3d at 414 (“[T]he hallmark of moral turpitude is a reprehensible act committed with an appreciable level of consciousness or deliberation.”); see also, Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017) (“To involve moral turpitude, a crime requires" }, { "docid": "16137883", "title": "", "text": "the intent of Congress is manifest. The BIA analyzed and interpreted the term “sexual abuse of a minor” in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 994-96 (BIA 1999). In so doing, it consulted other federal statutes that define similar sex offenses. The narrow definition of “sexual abuse” in 18 U.S.C. §§ 2242, 2243, and 2246 was deemed inapposite because it required contact with the victim. Id. at 996. Instead, the BIA adopted the meaning of “sexual abuse” in 18 U.S.C. § 3509 to operate as a “guide in identifying the types of crimes [it] would consider to be sexual abuse of a minor.” Id. The BIA adopted so broad and flexible a‘definition in. view of the congressional intent to “expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children” through the grounds of deportability added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546. Id. at 994, 996. We have already held that this definition is entitled to Chevron deference. See Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d Cir.2001). Oouch urges us to follow the Ninth Circuit’s in banc decision to the contrary in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (in banc), which declined to give Chevron deference to Rodriguez-Rodriguez in a case involving a statutory rape statute. But since Estrada-Espinoza is contrary to Mugalli we adhere to our Circuit law. B In assessing whether an alien’s conviction renders him removable, we use a categorical approach that looks to the elements of the penal statute rather than the particulars of the alien’s conduct. Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Canada v. Gonzales, 448 F.3d 560, 565 (2d Cir.2006). The inquiry is whether “every set of facts violating a statute” satisfies the criteria for removability; in effect, only the minimum criminal conduct necessary for a conviction is relevant. Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir.2004). The inquiry gets complicated when a criminal statute proscribes several classes of criminal acts — some" }, { "docid": "21348481", "title": "", "text": "again have no occasion to decide the issue. As explained above, because Padilla does not apply retroactively, Moreno-Ta-pia’s state convictions were not unconstitutionally obtained. Nor, as the district court emphasized, has Moreno-Tapia contended that he is actually innocent of the state indecent liberties charges. Accordingly, application of § 2L1.2’s 12-level enhancement does not implicate the potential due process concerns articulated in Luna-Diaz and Moran-Rosario. Cf. Garcia-Lopez, 375 F.3d at 589 (applying § 2L1.2 enhancement where conviction vacated on state-law grounds). Under these circumstances, the district court correctly applied § 2L1.2’s 12-level increase to Moreno-Tapia’s offense level, and we affirm its sentencing determination. III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED . The terms \"deportation” and \"removal” are interchangeable for purposes of § 1326. United States v. Gomez, 757 F.3d 885, 891 n.1 (9th Cir. 2014). While § 1326(a) refers, inter alia, to an alien who has been \"deported” or \"excluded,” the subsequently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 combined those once distinct proceedings into a single category of “removal proceedings.” Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 349-50, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005); Gomez, 757 F.3d at 891 n.1. Cases post-dating this amendment generally use the term \"removal proceedings,” although § 1326 continues to refer to \"deportation proceedings.” See 8 U.S.C. § 1326(d)(2). . For the first time on appeal, Moreno-Tapia does raise certain alleged procedural deficiencies in his expedited immigration proceedings, arguing that he was removed after eight days rather than the fourteen days specified in 8 U.S.C. § 1228(b)(3), and that the notice DHS provided him did not include a citation for the statutory definition of an aggravated felony. Ordinarily, of course, we do not reach issues that were not presented first to the district court. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009). And in any event, for the reasons discussed below, Moreno-Tapia cannot demonstrate that he was prejudiced by any purported defect he now identifies. . We therefore need not consider whether the principle articulated in Lopez-Collazo" }, { "docid": "21212458", "title": "", "text": "was not charged with, and he did not otherwise admit to, an intent permanently to deprive the victim of her property. He further argues that the BIA erred insofar as it inferred from his plea colloquy transcript that he intended a permanent taking. We agree and hold that the crime Wala pled to does not constitute a CIMT. I. Jurisdiction and Standard of Review Odinarily, this Court lacks jurisdiction to review orders of removal based on an alien’s conviction for certain offenses, including CIMTs. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to consider “questions of law,” 8 U.S.C. § 1252(a)(2)(D), including whether an alien’s conviction qualifies as a removable offense under the immigration laws. See Mizrahi v. Gonzales, 492 F.3d 156, 157-58 (2d Cir.2007); Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir.2007). Where, as here, the BIA adopts the IJ’s reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We accord Chevron deference to the BIA’s construction of ambiguous statutory terms in immigration law, such as “moral turpitude.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir.2000) (deferring to the BIA’s rule that crimes for which knowledge is an element are generally CIMTs). “However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing ... state criminal statutes, and so we review de novo the BIA’s finding that a petitioner’s crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005). Thus, in this case, we defer to the BIA’s view that larceny involving a permanent taking amounts to a CIMT, but we review de novo whether Wala’s conviction for third-degree burglary under Connecticut law falls within this category. II. Wala’s Alleged CIMT With these principles in mind, we turn to whether Wala’s conviction for burglary" }, { "docid": "23119071", "title": "", "text": "91 (2d Cir.1998), the Second Circuit noted that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) amended the immigration statutes so as to eliminate the previous legal distinction between deportation, removal and exclusion, merging all of these proceedings into a broader category entitled “removal proceedings.” Pantin, 155 F.3d at 92. The IIRIRA simultaneously amended the language of § 1326. Id. Viewing § 1326 in light of the changes made by the IIRIRA, the Second Circuit concluded that a defendant who previously had been “deported” subsequent to a conviction for commission of an aggravated felony properly was subjected to a sentence enhancement under § 1326(b)(2) even though that section provides for enhancement against an alien who previously was “removed” subsequent to a conviction for commission of an aggravated felony. Id. at 92-93. Similarly, in United States v. Pena-Renovato, 168 F.3d 163 (5th Cir.1999), the Fifth Circuit concluded that the language of 8 U.S.C. § 1326 as amended by the IIRIRA “does not attach any importance to the distinction between removal and deportation; instead, it considers both as valid grounds for the imposition of penalties.” Pena-Renovato, 168 F.3d at 164. Thus the Fifth Circuit concluded that a defendant charged with reentry after being “deported” properly was convicted of violating § 1326 even though the evidence may have shown that the defendant had been “removed” rather than “deported.1’ Id. at 165. We agree with the reasoning set forth in Pantin and Penar-Renovato and thus conclude that any distinction between deportation and removal is legally insignificant for purposes of § 1326. Because all of Appellant’s arguments rest upon an erroneous assumption that the prosecution was required to prove that he reentered the country after having been “deported” rather than “removed,” he has failed to demonstrate adequate grounds for reversal. We would reach the same result even absent reliance upon the reasoning set forth in Pantin and Penar-Renovato. “The essential purpose of an indictment is to give the defendant notice of the charge so that he can defend or plead his case adequately.” United States v. Neill, 166 F.3d 943, 947 (9th" }, { "docid": "22303906", "title": "", "text": "agency policy,” 545 U.S. at 982, 125 S.Ct. 2688, because “the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” Id. at 981, 125 S.Ct. 2688 (internal quotation marks and citations omitted). Therefore, under Chevron and Brand X we are required to defer to In re Torres-Garcia’s interpretation of the statutory scheme, regardless of whether the agency once adhered to a different interpretation. In In re Torres-Garcia, the BIA held that an applicant who is inadmissible under subsection (a)(9)(C)(i)(II) is also ineligible to adjust his status under the special adjustment provision from within the United States. The alien is bound by subsection (a)(9)(C)(ii), requiring that he obtain permission to apply for readmission from outside the United States after ten years have lapsed from the date of his last departure. The BIA’s decision is clearly reasonable and is therefore entitled to Chevron deference under Brand X. IV The district court correctly determined that it has jurisdiction over this case and that Femandez-Vargas does not undermine the holding in Perez-Gonzalez that a successful 1-212 waiver would avoid the reinstatement provision. However, we vacate the district court’s order because we hold today that we are bound by the BIA’s interpretation of the applicable statutes in In re Torres-Garcia, even though that interpretation differs from our prior interpretation in Perez-Gonzalez. Pursuant to In re Torres-Garcia, plaintiffs as a matter of law are not eligible to adjust their status because they are ineligible to receive 1-212 waivers. Accordingly, the plaintiffs have no likelihood of success on the merits of their suit, and the preliminary injunction is vacated. See First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1385 (9th Cir.1987) (holding that a showing of likelihood of success is essential for a preliminary injunction). The case is remanded for fur ther proceedings consistent with this opinion. VACATED AND REMANDED. . IIRIRA also eliminated deportation and exclusion proceedings, merging them into the broader category of removal proceedings. See Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 854 n. 6 (9th Cir.2004). . DHS does not appeal" }, { "docid": "21348482", "title": "", "text": "single category of “removal proceedings.” Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 349-50, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005); Gomez, 757 F.3d at 891 n.1. Cases post-dating this amendment generally use the term \"removal proceedings,” although § 1326 continues to refer to \"deportation proceedings.” See 8 U.S.C. § 1326(d)(2). . For the first time on appeal, Moreno-Tapia does raise certain alleged procedural deficiencies in his expedited immigration proceedings, arguing that he was removed after eight days rather than the fourteen days specified in 8 U.S.C. § 1228(b)(3), and that the notice DHS provided him did not include a citation for the statutory definition of an aggravated felony. Ordinarily, of course, we do not reach issues that were not presented first to the district court. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009). And in any event, for the reasons discussed below, Moreno-Tapia cannot demonstrate that he was prejudiced by any purported defect he now identifies. . We therefore need not consider whether the principle articulated in Lopez-Collazo — that courts refer to the law as it stood at the time of removal in assessing prejudice under § 1326(d) — would extend to new substantive rules applied retroactively by the Supreme Court. See Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1264-65, 194 L.Ed.2d 387 (2016). . We also find that to the extent Moreno-Tapia's motion to dismiss the indictment was still before the district court, see supra at 220-21, it was properly denied. As discussed above, the government was entitled to charge Moreno-Tapia with illegal reentry notwithstanding the vacatur of his state court convictions. And once the district court held that Moreno-Tapia's plea agreement remained enforceable, there no longer was any ground for a challenge to the charge of failure to register as a sex offender under SORNA: Pursuant to the plea agreement, that count of the indictment was dismissed at sentencing on the government’s motion. We thus have no occasion to consider the merits of Moreno-Tapia’s conditional challenge to his indictment for failure to register. . The offense-level increase" }, { "docid": "22230278", "title": "", "text": "deportation proceedings. See Matter of Silva, 16 I. & N. Dec. 26, 29-30 (BIA Sept. 10, 1976); see also Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.1981) (approving of Silva). Section 440(d) makes § 212(c) relief unavailable to legal permanent residents “who are deportable by reason of having committed” an aggravated felony. 110 Stat. at 1277(emphasis added). The BIA has held that the term “deportable” means that § 440(d) only applies to aliens in deportation, as opposed to exclusion, proceedings. See In re Fuentes-Campos, 21 I. & N. Dec. 905, 907-10 (BIA May 14, 1997). Armendariz argues that § 440(d) revives an irrational distinction between aliens in exclusion and deportation proceedings. We rejected the identical challenge in United States v. Estrada-Torres, 179 F.3d 776 (9th Cir.1999), overruled on other grounds, United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc). In that case, we disagreed with the BIA’s construction of § 440(d). Id. at 779-80. We held that despite § 440(d)’s plain language, it applies equally to exclusion and deportation proceedings. Id. Because Congress did not draw any distinction between aliens in deportation and those in exclusion proceedings, § 440(d) does not violate equal protection. Id. While our sister circuits have uniformly rejected an identical challenge, they have employed different reasoning from that of Estrada-Torres. See Domond v. INS, 244 F.3d 81, 87 88 (2d Cir.2001); Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152-53 (10th Cir.1999); Requena-Rodriguez, 190 F.3d at 309; DeSousa v. Reno, 190 F.3d 175, 185(3d Cir.1999); LaGuerre, 164 F.3d at 1041. These circuits have adopted the BIA’s interpretation that § 440(d) only applies to deportation, and not to exclusion proceedings. Our sister circuits, however, have concluded that it is rational to apply a harsher standard to deportation proceedings. As the Third Circuit explained, In order to aid the United States in expelling criminal aliens from the country, Congress rationally could have decided to encourage such aliens to voluntarily leave the country as a carrot to a potential waiver of removal when they sought reentry. Creating such an incentive may have appeared desirable to Congress for" }, { "docid": "21348456", "title": "", "text": "risks of a guilty plea. And, indeed, in 2015, a North Carolina court vacated Moreno-Tapia’s convictions, relying on Padilla. The primary question before us now is what effect the alleged constitutional deficiency in Moreno-Tapia’s state convictions has on his subsequent prosecution for illegal reentry. We conclude that the alleged infirmity has no effect. Because Padilla does not apply retroactively to defendants like Moreno-Tapia, convicted before the case was decided, see Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (2013), Moreno-Tapia’s convictions remain valid today as a matter of federal law, and his attempt to collaterally attack his 2009 removal is unavailing on that ground alone. Accordingly, we hold that the district court properly denied Moreno-Tapia’s motion to vacate the 2009 removal order and to withdraw his guilty plea to the charge of illegal reentry. And for similar reasons, we find no error in the district court’s reliance on the vacated state convictions in determining Moreno-Tapia’s sentencing range under the Sentencing Guidelines. We therefore affirm the judgment of the district court in all respects. I. A. We begin with a brief overview of the statutory background relevant to the illegal reentry charge against Moreno-Tapia. Under 8 U.S.C. § 1326(a) and b(2), an alien who has been removed from the United States after being convicted of an aggravated felony — as Moreno-Tapia was in 2009, based on his state convictions— commits a felony if he subsequently reenters the United States without permission. To win a conviction under § 1326, the government must prove, as an element of the offense, the defendant’s prior removal or deportation. See United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). Typically, the government may rely on the removal order itself, issued by the Department of Homeland Security (“DHS”), to meet this burden. But in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that the fact of a removal order may not be treated as conclusive proof of an element of a criminal offense where the immigration proceeding “was not" }, { "docid": "22597962", "title": "", "text": "permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. As long as the interpretation is reasonable, we must defer to the agency’s construction of the statute even though it may not conform with how we would interpret the statute in an original judicial proceeding. Id. Because the statute that Mr. Tapia-Garcia challenges is arguably subject to differing interpreta tions, we will defer to the BIA’s interpretation provided it is reasonable. Y. Removability by Reason of Having Committed a Criminal Offense Because Mr. Tapia-Garcia does not dispute that he is an alien, the only jurisdictional fact left for our review under 8 U.S.C. § 1252(a)(2)(C) is whether Mr. Tapia-Garcia is removable by reason of having committed an aggravated felony under the relevant statutes. The BIA affirmed the immigration judge’s decision that Mr. Tapia-Garcia is deportable by reason of having committed an aggravated felony as provided in 8 U.S.C. § 1227(a)(2)(A)(iii). In the immigration context, the term aggravated felony is defined by the various offenses described in 8 U.SC. § 1101(a)(43). The definition specifically includes a “crime of violence ... for which the term of imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(F), and incorporates the definition of crime of violence in 18 U.S.C. § 16. The immigration judge concluded that Mr. Tapia-Garcia’s state conviction under section 18-8004(5) of the Idaho Code satisfies the definition of crime of violence in 18 U.S.C. § 16(b), which defines a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Concluding Mr. Tapia-Garcia’s DUI offense satisfies this definition, the immigration judge and BIA held he was deportable by reason of having committed an aggravated felony. Mr. Tapia-Garcia argues that Idaho’s DUI offense does not satisfy the statutory definition of crime of violence because it does not “by its nature involve[ ] a substantial risk that physical force ... may be used in the course of committing the offense.” 18" }, { "docid": "22647370", "title": "", "text": "turpitude,” would make Alien A eligible for a § 212(c) waiver. If he ends up in deportation proceedings, however, he is not eligible for § 212(c) relief, under the comparable grounds test, because the category “aggravated felonies” is sufficiently different from the category of “crimes involving moral turpitude.” Alien B, on the other hand, who commits a drug offense is also both deportable and excludable, but is eligible for § 212(c) relief in a deportation proceeding simply because drug offenses were described with similar words in the deportation and exclusion statutes. This type of classification between aliens who are otherwise similarly situated violates equal protection unless it is rationally related to a legitimate government interest. Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 603 (9th Cir.2002). Congress is surely informed by important policy considerations when making determinations about which offenses make an alien deport-able or excludable. Decisions about the size, scope, and overlap of categories of deportable and excludable offenses have no rational relation to judgments about which aliens should be permitted to remain in our country and which should not. As Judge Berzon pointed out, there is one additional inconsistency between the comparable grounds test and the way that section 212(c) relief functions as a practical matter. Once an alien receives a waiver of excludability under either section 212(c) or other waiver provisions, the alien cannot be deported or excluded in the future solely due to the offense on which he received the waiver. This is true even if there is a category of deportable crimes that applies to his offense which is different from the category that permitted the waiver. See, e.g., Matter of Balderas, 20 I. & N. Dec. 389, 392 (BIA 1991). In other words, section 212(c) relief is itself offense-specific, not ground-specific. III Additionally, I respectfully dissent from the majority’s holding that Abebe did not exhaust his claim for withholding of removal. Abebe raised this claim in his notice of appeal before the BIA. The purpose of the administrative exhaustion requirement is so that the “administrative agency[may] have a full opportunity to resolve a controversy or correct" }, { "docid": "22295844", "title": "", "text": "the time of that conduct and they remain unchanged today. He was subject to possible criminal sanctions and deportation.” Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.1996). “In general, the concern regarding retroactive application of statutes is the deprivation of rights without notice and fair warning; such concerns are not present in this case.... In this case, Congress did not attach additional consequences [to past criminal activity] but merely withdrew a previously available form of discretionary relief.” Id. (quoting De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.1993)) (alterations in original). True retroactivity would occur- if IIRIRA revoked § 212(c) relief from those who had received it prior to IIRI-RA’s effective date. IIRIRA § 304(b), like the 1990 amendment, “is not made retroactive merely because it applies to convictions for aggravated felonies before that time. The past aggravated felony conviction is only the prerequisite for the prospective denial of discretionary relief.” De Osorio, 10 F.3d at 1042. As of IIRIRA’s April 1, 1997 effective date, Congress plainly changed the category of aliens who thereafter may seek cancellation of removal, and I disagree that the new scheme has a genuinely retroactive effect. Accordingly, I would conclude that the Landgraf presumption against retroactivity has no effect on our analysis. In the absence of any such presumption against retroactivity, our more traditional tools of construction apply, including the usual deference afforded to agency interpretations under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, even were I to agree that the temporal reach of § 304(b) is ambiguous, I still believe that petitioner here would not be entitled to withholding of deportation or cancellation of removal proceedings. . The majority hints that removing 8 U.S.C. § 1182(c) (\" § 212(c)”) relief retroactively would raise \"a profound constitutional question.\" Supra at 416 n. 6. I share no such concern. Congress’s plenary power to define the conditions of aliens’ continued residence in this country gives Congress the authority to remove § 212(c) relief, as advocated by the INS. I do not dispute" }, { "docid": "4054604", "title": "", "text": "the immigration fraud issue. Uppal timely filed this petition for review. JURISDICTION We have jurisdiction to review this final order of removal under 8 U.S.C. § 1252(a)(1). Although our jurisdiction to review orders of removal against “criminal aliens” is limited by 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review constitutional challenges and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (a)(2)(D). Whether a crime involves moral turpitude is a question of law not subject to the jurisdiction-stripping provision of § 1252(a)(2)(C). Tall v. Mukasey, 517 F.3d 1115, 1118-19 (9th Cir.2008). DISCUSSION The determination whether a conviction under a criminal statute is categorically a CIMT involves two steps, to which different standards of review apply. See Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc). First, the BIA must identify the elements of the statute necessary to secure a conviction. Because “[t]he BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes,” we review its conclusion in that regard de novo. Id. at 907. Second, once it identifies the elements of the statute, the BIA must compare those elements to the generic definition of a crime involving moral turpitude and decide whether they meet the definition. Id. at 908; see also Morales-Garda v. Holder, 567 F.3d 1058, 1064 (9th Cir.2009). Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted, following the Chevron framework if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute), and following the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute). Marmolejo-Campos, 558 F.3d at 909-11; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). As the decision here is of the latter variety, our deference analysis on the second prong of the CIMT inquiry must proceed under" }, { "docid": "21212459", "title": "", "text": "to the BIA’s construction of ambiguous statutory terms in immigration law, such as “moral turpitude.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir.2000) (deferring to the BIA’s rule that crimes for which knowledge is an element are generally CIMTs). “However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing ... state criminal statutes, and so we review de novo the BIA’s finding that a petitioner’s crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005). Thus, in this case, we defer to the BIA’s view that larceny involving a permanent taking amounts to a CIMT, but we review de novo whether Wala’s conviction for third-degree burglary under Connecticut law falls within this category. II. Wala’s Alleged CIMT With these principles in mind, we turn to whether Wala’s conviction for burglary in the third degree was a CIMT such that he was removable under 8 U.S.C. § 1182(a) (2)(A) (i) (I). A. Definition of a CIMT An alien is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) if he has been “convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of ... a crime involving moral turpitude.” Traditionally, the BIA has defined a CIMT as “conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between per sons or to society in general.” Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir.2006) (internal quotation marks omitted); see also In re M-, 2 I. & N. Dec. 721, 723 (B.I.A.1946). The BIA has held that burglary offenses “may or may not involve moral turpitude, the determinative factor being whether the crime intended to be committed at the time of entry or prior to the breaking out involves moral turpitude.” In re M-, 2 I. & N." }, { "docid": "15441043", "title": "", "text": "“committed” instead of the word “convicted,” thereby signaling, in the Government’s view, its intent to allow a broader review of the petitioner’s criminal record. The Government further argues that the BIA’s construction of the term “commercial advantage” is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and that the BIA correctly applied its interpretation of the term to the facts of this case. DISCUSSION I. Jurisdiction As of the codification of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C., Title III-B, 110 Stat. 3009-546 (Sept. 30, 1996), we lack jurisdiction to review any final order of removal against an alien who is deportable because he or she was convicted of an aggravated felony, save for constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C). “This jurisdictional bar arises if: (1) the petitioner is an alien; and (2) he is deportable under one of the offenses enumerated in 8 U.S.C. § 1101(a)(43).” Mugalli v. Ashcroft, 258 F.3d 52, 54-55 (2d Cir.2001). We retain jurisdiction, however, to determine whether this jurisdictional bar applies — that is, whether a petitioner satisfies the jurisdictional facts such as convictions for an aggravated felony. Id. at 55. “The determination of our jurisdiction is exclusively for the court to decide.” Id. (internal quotation marks omitted). II. Standard of Review When the BIA has adopted the IJ’s reasoning and offered additional commentary, we review the decision of the IJ as supplemented by the BIA. Wala, 511 F.3d at 105. Additionally, when our jurisdiction depends on the definition of a phrase used in the INA, and “when the intent of Congress is unclear and the agency’s interpretation is reasonable,” we accord the BIA’s determination the deference mandated by the Supreme Court’s decision in Chevron. Mugalli, 258 F.3d at 55 (internal quotation marks omitted). But when, in the course of interpreting the INA, the BIA has interpreted state or federal criminal laws, we review its decision de novo. Id. III. Applicable Law: The INA’s Definition of “Aggravated" }, { "docid": "21348457", "title": "", "text": "in all respects. I. A. We begin with a brief overview of the statutory background relevant to the illegal reentry charge against Moreno-Tapia. Under 8 U.S.C. § 1326(a) and b(2), an alien who has been removed from the United States after being convicted of an aggravated felony — as Moreno-Tapia was in 2009, based on his state convictions— commits a felony if he subsequently reenters the United States without permission. To win a conviction under § 1326, the government must prove, as an element of the offense, the defendant’s prior removal or deportation. See United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). Typically, the government may rely on the removal order itself, issued by the Department of Homeland Security (“DHS”), to meet this burden. But in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that the fact of a removal order may not be treated as conclusive proof of an element of a criminal offense where the immigration proceeding “was not conducted in conformity with due process.” Id. at 834, 838-39,107 S.Ct. 2148. In that case, the Court concluded, the underlying immigration proceeding violated due process, because the immigration judge permitted improper waivers of the right to appeal and failed to advise of eligibility to apply for suspension of deportation. Id. at 840, 107 S.Ct. 2148. And because those procedural defects foreclosed judicial review of the resulting deportation order, the Court held, the defendants were entitled to collaterally attack that order in their subsequent prosecution for illegal reentry. Id. at 837-39, 107 S.Ct. 2148. Congress responded by codifying the principle of Mendoza-Lopez in 8 U.S.C. § 1326(d). See United States v. Sosa, 387 F.3d 131, 136 (2d Cir. 2004). Under that statute, in order to bring a successful collateral attack against a removal order, the defendant in an illegal reentry prosecution must meet three requirements, demonstrating that: (1) [he or she] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued" }, { "docid": "22878834", "title": "", "text": "S.Ct. 2778, 81 L.Ed.2d 694 (1984)); Bell, 218 F.3d at 90. Under the Chevron standard, we adhere to Congress’ purpose where the INA clearly speaks to the point in question, but if the INA is silent or ambiguous, then we must defer to any reasonable interpretation of the statute adopted by the Board as the entity charged by Congress with the statute’s enforcement. Aguirre-Aguirre, 526 U.S. at 424-25, 119 S.Ct. 1439. Accordingly, where the Board has construed the terms of a ground for removal identified in the INA, we defer under Chemon to that construction. But where the Board has further determined that an offense, as defined by a particular criminal statute, falls within those terms, we review that determination de novo. Dalton v. Ashcroft, 257 F.3d 200, 203-04 (2d Cir.2001); Sui, 250 F.3d at 112-13; Sutherland, 228 F.3d at 173-75; Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000). 2. The Removal Statute: INA § 237(a)(2)(C) INA § 237(a)(2)(C) provides for deportation based on conviction for certain “firearms offenses” Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law is deportable. 8 U.S.C. § 1227(a)(2)(C). The Board had construed predecessor statutes “as providing for the deportability of any alien who, at any time after entry, has been convicted under any law of a crime of which the possession or carrying of a firearm or destructive device is an essential element.” In re Kuhali, No. [ AXX XXX XXX ], slip op. at 2 (BIA July 29, 1999) (unpublished decision) (citing, inter alia, In re Lopez-Amaro, 20 I. & N. Dec. 668, 672-73 (BIA June 1, 1993), aff'd, Lopez-Amaro v. INS, 25 F.3d 986 (11th Cir.1994)). The Board applied this same reasoning to the post-IIRIRA version of the statute. Although INA § 237(a)(2)(C)" } ]

[ { "docid": "19652241", "title": "", "text": "The broad range of interpretations described above is attributable to the fact that the word “substantial” can have two quite different — indeed, almost contrary — connotations. On the one hand, it can mean “[cjonsiderable .in amount, value, or the like; large,” Webster’s New International Dictionary 2514 (2d ed. 1945) — as, for example, in the statement, “He won the election by a substantial majority.” On the other' hand, it can mean “[t]hat is such in substance or in the main,” ibid, —as, for example, in the statement, “What he said was substantially true.” Depending upon which connotation one selects, “substantially justified” is susceptible of interpretations ranging from the Government’s to the respondents’. We are not, however, dealing with a field of law that provides no guidance in this matter. Judicial review of agency action, the field at issue here, regularly proceeds under the rubric of “substantial evidence” set forth in the Administrative Procedure Act, 5 U. S. C. § 706(2)(E). That phrase does not mean a large or considerable amount of evidence, but rather “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938). In an area related to the present case in another way, the test for avoiding the imposition of attorney’s fees for resisting discovery in district court is whether the resistance was “substantially justified,” Fed. Rules Civ. Proc. 37(a)(4) and (b)(2)(E). To our knowledge, that has never been described as meaning “justified to a high degree,” but rather has been said to be satisfied if there is a “genuine dispute,” Advisory Committee’s Notes on 1970 Amendments to Fed. Rule Civ. Proc. 37(a)(4), 28 U. S. C. App., p. 601; see, e. g., Quaker Chair Corp. v. Litton Business Systems, Inc., 71 F. R. D. 527, 535 (SDNY 1976), or “if reasonable people could differ as to [the appropriateness-of the contested action],” Reygo Pacific Corp. v. Johnston Pump Co., 680 F. 2d 647, 649 (CA9 1982); see 8 C. Wright & A. Miller,- Federal Practice and Procedure §2288, p. 790 (1970);" } ]

[ { "docid": "19168304", "title": "", "text": "at 2. The Council’s motion for fees and costs pursuant to RCFC 37(a)(5) seeks $4,689.00 in fees and no costs. Although it opposes any award of fees, the government has not objected to the quantum of fees requested by the Council. ' ANALYSIS RCFC 37(a)(5) provides for an award of fees and expenses upon the grant of a motion to compel in two types of circumstances. First, RCFC 37(a)(5)(A) applies if the motion is granted. In that event, “the court must ... require the party ... whose conduct necessitated the motion ... to pay the mov-ant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if ... (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (in) other circumstances make an award of expenses unjust.” RCFC 37(a)(5)(A). Contrastingly, if the motion is granted in part and denied in part, the court “may ... apportion the reasonable expenses for the motion.” RCFC 37(a)(5)(C). Accordingly, the threshold question before the court is whether Subparagraph (A) or (C) applies to the Council’s motion for fees. A Applicability of RCFC 37(a)(5)(A) or (C) Generally, Rule 37 addresses “consequences of a failure to respond properly to discovery.” 8B Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure, § 2282 (3d ed.2010). The current provisions of the Rule relate back to amendments to Fed.R.Civ.P. 37 adopted in 1970, which were designed to require courts to award expenses when a motion for an order compelling discovery is successful “unless the conduct of the losing party or person is found to have been substantially justified.” Fed.R.Civ.P. 37 advisory committee’s notes to 1970 amendments, subdiv. (a)(4); see also Federal Practice and Procedure, § 2281. In effect, ‘“to encourage judges to be more alert to abuses occurring in the discovery process,’” the Rule “encompass[es] a presumption that sanctions should be awarded unless one of the [exempting] conditions in the Rule is met.” Covad Commc’ns Co. v. Revonet, Inc., 262 F.R.D. 1, 2 (D.D.C.2009) (quoting Fed. R.Civ.P. 37 advisory committee’s notes to 1970 amendments," }, { "docid": "21153566", "title": "", "text": "reasonable expenses, including attorney’s fees, against the party being required to produce discovery unless that party can demonstrate that it was “substantially justified” in withholding the requested information. See Rickels v. City of South Bend, 33 F.3d 785, 787 (7th Cir.1994) (stating that Rule 34(a)(4) is a “fee shifting rule. The winner is entitled to fees unless the opponent establishes that his position was ‘substantially justified’ ”); Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 157 (D.N.J.1999) (holding “Rule 37(a)(4) grants the Court authority to impose sanctions against a party who is compelled to make disclosures as a result of the motion”). When a motion to compel is granted, the burden is on the opposing party to show that an award of costs would be unjust or that the opposing party’s position was substantially justified. Rickels, 33 F.3d at 787. 2). Discovery — Sanctions—Rule 37(a) — Successfully BHng a Motion to Compel — Substantially Justified. The Supreme Court, in interpreting the meaning of “substantially justified” in connection with the Equal Access to Justice Act, found the phrase to mean “ ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.” 487 U.S. 552, 566, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). An individual’s conduct is found to be “substantially justified” if it is a response to a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Id. at 565, 108 S.Ct. 2541; see also Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2288 (1994) (“Making a motion, or opposing a motion, is ‘substantially justified’ if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule.”). 3). Discovery — Sanctions—Rule 37(a)— Successfully Bring a Motion to Compel— Reasonable Costs. Concerning rates charged by attorneys in calculating attorney’s fees, our Court of Appeals has held that “the community in which the court sits is the appropriate starting point for selecting the proper rate.” Nat’l Wildlife Federation v." }, { "docid": "22435436", "title": "", "text": "Rule 37(a)(5)(B) only if, upon considering a Rule 26(c) motion for a protective order set against a Rule 37(a) motion to compel discovery, the court (1) denies the motion to compel because it was not “substantially justified,” and (2) issues the protective order. Fed.R.Civ.P. 37(a)(5)(B). In that case, unless “other circumstances make an award of expenses unjust,” the court may award the prevailing party the “reasonable expenses incurred in opposing the motion” to compel, including attorney’s fees. Id. Those sanctions may issue against the party seeking discovery, that party’s attorney, or both. Id. Rule 37(a)(5)(C) similarly permits a court to “apportion the reasonable expenses” incurred in opposing a motion to compel if the court denies in part and grants in part a party’s motion to compel. In the context of these two rules, a motion to compel is “substantially justified” so long as “there is a genuine dispute, or if reasonable people could differ as to [the appropriateness of the contested action].” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (alteration in original) (citations and internal quotation marks omitted) (comparing Rule 37’s “substantially justified” language to a similar provision in the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)). Thus, as would be expected, the award of sanctions under Rule 37(a)(5) turns on the specifics of each individual case. Here, the district court awarded $330, the amount of attorney’s fees incurred by Wall to Wall in opposing Josendis’s post-deadline discovery demands, in the form of sanctions against Costales. The court did so only after finding that Costales had “obviousfly]” drafted his discovery requests “without any effort to constrain them within the bounds set for discovery” by the court. Based on its impression of Costales’s work, the district court then determined that the requests were “not substantially justified” in light of the limitations imposed. Costales now argues that the court abused its discretion in imposing sanctions because the discovery requests should not have been denied or, alternatively, were made in good faith, as the court’s discovery order did not specifically indicate how far" }, { "docid": "8452680", "title": "", "text": "instant case and, accordingly, Dr. Sica was instructed not to answer. Dart has now moved for an order compelling Dr. Sica to answer the two questions pursuant to Fed.R.Civ.P. 37(a)(2), and to recover the “reasonable expenses incurred in making the motion” under subsection (a)(4)(A) of the same rule. In response, Cabana has moved for a protective order under Fed.R.Civ.P. 30(d)(3) and 26(c) on the grounds that the questions were asked in bad faith or unreasonably to annoy, harass or embarrass Dr. Sica. If a deponent refuses to answer deposition questions, the party seeking those responses may file a motion pursuant to Fed.R.Civ.P. 37(a)(2)(B) for an order compelling answers. The motion “should be granted if the questions are relevant and proper and denied if the questions call for privileged information or if an answer is otherwise unnecessary.” 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2286 (1994). Fed.R.Civ.P. 37(a)(4)(A) provides for the mandatory shifting of costs, including attorney’s fees, to the losing party on a motion to compel: unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery, without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. The 1993 Advisory Committee Notes explain that the phrase “opportunity to be heard” is used instead of “opportunity for a hearing” to make clear that courts can determine whether to award expenses on the basis of written submissions alone. As counsel is well aware, the scope of discovery under the Federal Rules is very broad. See Fed.R.Civ.P. 26(b)(1). Under the liberal standard set forth in that rule, “information is discoverable if there is any possibility it might bé relevant to the subject matter of the action.” EEOC v. Electro-Term, Inc., 167 F.R.D. 344, 346 (D.Mass.1996). Inquiries concerning a witnesses’ credibility are relevant and thus reasonably calculated to lead to the discovery of admissible evidence, Davidson Pipe Co. v. Laventhol & Horwath, 120 F.R.D. 455, 461-64 (S.D.N.Y.1988)," }, { "docid": "7202511", "title": "", "text": "District filed approximately 6,000 pages of responsive documents more than one month after plaintiffs filed the underlying motion to compel. (PL’s Reply 22-23.) This conduct alone merits the imposition of sanctions under Rule 37(a)(5)(A). Setting aside the District’s provision of significant discovery after plaintiffs filed their motion, the award of plaintiffs’ attorney’s fees would also be merited under Rule 37(a)(5)(C), which provides that when a motion to compel is granted in part and denied in part, the Court may “apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C). The District argues that sanctions should not be imposed either because its opposition to discovery was “substantially justified,” or because an award of expenses would be otherwise “unjust.” (Def.’s Opp’n 23-26.) See also Fed.R.Civ.P. 37(a)(5)(C)(ii) and (iii). These arguments are without merit. “The Supreme Court has stated that a party meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Alexander v. FBI, 186 F.R.D. 144, 147 (D.D.C.1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). With two minor and narrow exceptions, today the Court substantially grants plaintiffs’ motion in its entirety. The Court’s overwhelming decision for the plaintiffs on the merits of their motion is sufficient to show that the District’s objections were not substantially justified. The Court finds that reasonable people could not differ as to the appropriateness of the bulk of plaintiffs’ motion. Indeed, the District’s pattern of tardy and piecemeal disclosure, and the fact that approximately 6,000 pages of responsive documents were turned over after plaintiffs’ renewed motion to compel was filed, demonstrate that filing a motion to compel was the only adequate remedy available to plaintiffs. Nor was there a “genuine dispute” with respect to the vast majority of plaintiffs’ requests. Indeed, many of the objections raised by the District were plainly inapplicable. Nor is the Court persuaded by the District’s argument that the award of attorney’s fees under the present circumstances would be “unjust.” In particular, the District ar gues that “[t]he financially hard-pressed school" }, { "docid": "5663612", "title": "", "text": "State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370 (10th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978). In that case appellant sought relief from sanctions imposed under Rule 37(bX2) for noncomplianee with discovery orders. The court accepted the appeal under its reading of Cohen. Id. at 1372. The Temporary Emergency Court of Appeals recently held that it lacked jurisdiction to consider an appeal of an order imposing sanction under Rule 37(b)(2) for giving false answers to interrogatories. Evanson v. Union Oil Co., 619 F.2d 72, 74 (Em. App.1980). The court noted that the Cohen exception was not meant to “apply to the mass of cases involving interlocutory discover orders,” id., and refused to follow the expansive view of “finality” taken by the Tenth Circuit in Arthur Andersen. We also refuse to follow this expansive view and adhere to the majority position that a party may not appeal this type of discovery order prior to final judgment. The motion is granted and the appeal is dismissed. . Rule 37(a)(4) permits a district court to award “reasonable expenses incurred in obtaining [an order compelling discovery], including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” . Rule 37(b)(2) permits the same award of reasonable expenses as does Rule 37(a)(4) when a party has failed to comply with an order compelling discovery. . See generally 8 Wright & Miller, Federal Practice and Procedure: Civil § 2006, at 29-34 (1970). . Firestone argues that the appeal is so frivolous as to justify award of costs and fees under Fed.R.Civ.P. 37. We reject this argument because Pflocks, in good faith, relied on the Arthur Andersen decision." }, { "docid": "14932492", "title": "", "text": "heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the; reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. A motion is “substantially justified” if it raises an issue about which “there is a genuine, dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S.. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (citations and quotation marks omitted). As noted by the Supreme Court, “the one [connotation] most naturally conveyed by the phrase before us here [“substantially justified”] is not ‘justified to a high degree,’ but rather ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.” Id. This circuit has adopted a four-factor test to determine whether a district court’s decision to impose sanctions under Rule 37 amounts to an abuse of discretion: The first factor is whether the party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault; the second factor is whether the adversary was prejudiced by the party’s failure to cooperate in discovery; the third factor is whether the party was warned that failure to cooperate could lead to the sanction; and the fourth factor in regard to a dismissal is whether less drastic sanctions were first imposed or considered. Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir.1997). The first Freeland factor appears to cut in the Does’ favor because the motion to compel raised an issue about which reasonable people could differ. As noted by the Does, LFUCG produced thousands of pages of the documents requested by the motion between the time that the motion was filed and the time that the district court granted attorney fees to LFUCG. This strongly suggests that the Does’ request for these documents was plausible on its face. Likewise, LFUCG could not" }, { "docid": "21153567", "title": "", "text": "found the phrase to mean “ ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.” 487 U.S. 552, 566, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). An individual’s conduct is found to be “substantially justified” if it is a response to a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Id. at 565, 108 S.Ct. 2541; see also Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2288 (1994) (“Making a motion, or opposing a motion, is ‘substantially justified’ if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule.”). 3). Discovery — Sanctions—Rule 37(a)— Successfully Bring a Motion to Compel— Reasonable Costs. Concerning rates charged by attorneys in calculating attorney’s fees, our Court of Appeals has held that “the community in which the court sits is the appropriate starting point for selecting the proper rate.” Nat’l Wildlife Federation v. Hanson, 859 F.2d 313, 317 (4th Cir.1988). B. Discussion 1. Substantially Justified If a Motion to Compel is granted “the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that ... objection was substantially justified....” Fed.R.Civ.P. 37(a)(4)(A). Defendant’s Motion to compel was granted on April 7, 2005. Plaintiff was afforded an opportunity to be heard on April 28, 2005. A court is required to award reasonable expenses, including attorney’s fees, against the party being required to produce discovery unless that party can demonstrate that it was “substantially justified” in withholding the requested information. See Rickels v. City of South Bend, 33 F.3d 785, 787 (7th Cir.1994). When a motion to compel is granted, the burden is on the opposing party to show that an award of costs would be unjust or that" }, { "docid": "8385378", "title": "", "text": "to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees.” Id. 37(a)(4); see also Standing Order ¶ 9. This award of expenses is intended to “deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists.” Cobell v. Norton (“Cobell I”), 213 F.R.D. 16, 29 (D.D.C.2003) (quoting Fed.R.Civ.P. 37(a)(4) advisory committee’s note). A court may not award Rule 37 expenses, however, if it finds, inter alia, that “the opposing party’s nondisclosure, response, or objection was substantially justified.” Fed.R.Civ.P. 37(a)(4). An opposing party’s objection qualifies as “substantially justified” if “there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Cobell v. Norton (\"Cobell II\"), 213 F.R.D. 48, 61 (D.D.C.2003); see also 8a Fed. Prac. & Proc. § 2288 (stating that an objection to a motion is substantially justified “if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule”); accord Pub. Citizen Health Research Group v. Young, 909 F.2d 546, 552 (D.C.Cir.1990) (stating, in the context of the Equal Access to Justice Act, that the question “is whether there was a reasonable basis in fact and law for the government’s litigating position”). A trial court enjoys broad discretion in choosing a sanction under Rule 37. Sturgis v. Am. Ass’n of Retired Persons, 1993 WL 518447, at *1 (D.C.Cir.1993) (per curiam). That said, “[t]he central requirement of Rule 37 is that any sanction must be just.” Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C.Cir.1996). B. The Parties’ Arguments The defendants advance three arguments in opposition to the plaintiffs’ motion to compel. First, the defendants argue that the testimony the plaintiffs seek is not relevant in light of the statistical evidence before the court, and thus is not discoverable under Federal Rule of Civil Procedure 26(b). Defs.’ Opp’n at 5-16 (citing Fed.R.Civ.P. 26(b)(1)). Second, the defendants contend that even if" }, { "docid": "7202510", "title": "", "text": "discretion to impose sanctions for discovery violations, and to determine what sanctions to impose.” Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 248 F.R.D. 64, 68 (D.D.C.,2008) (Lamberth, J.) (citing Kister v. District of Columbia, 229 F.R.D. 326, 329 (D.D.C.2005)). In relevant part, Rule 37 provides: If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. Fed.R.Civ.P. 37(a)(5)(A) (emphasis added). This Court has previously observed that “the language of the Rule itself is mandatory, dictating that the Court must award expenses upon granting a motion to compel disclosure unless one of the specified bases for refusing to make such an award is found to exist.” Cobell v. Norton, 226 F.R.D. 67, 90 (D.D.C.2005). In the case at bar, the District filed approximately 6,000 pages of responsive documents more than one month after plaintiffs filed the underlying motion to compel. (PL’s Reply 22-23.) This conduct alone merits the imposition of sanctions under Rule 37(a)(5)(A). Setting aside the District’s provision of significant discovery after plaintiffs filed their motion, the award of plaintiffs’ attorney’s fees would also be merited under Rule 37(a)(5)(C), which provides that when a motion to compel is granted in part and denied in part, the Court may “apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C). The District argues that sanctions should not be imposed either because its opposition to discovery was “substantially justified,” or because an award of expenses would be otherwise “unjust.” (Def.’s Opp’n 23-26.) See also Fed.R.Civ.P. 37(a)(5)(C)(ii) and (iii). These arguments are without merit. “The Supreme Court has stated that a party meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Alexander v. FBI, 186 F.R.D. 144, 147 (D.D.C.1999) (quoting Pierce v. Underwood, 487" }, { "docid": "3030441", "title": "", "text": "33(b)(4). “The burden is on the objecting party to show why an interrogatory is improper.” 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2173, at 291-92. Rule 37 provides enforcement mechanisms for rules 33 and 34. According to rule 37, if a party does not respond to an interrogatory or to a request for production, the party requesting the discovery may move the Court to compel the opposing party to respond. See Fed.R.Civ.P. 37(a)(2)(B). “[A]n evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(3). If the Court grants the motion to compel, the court shall, after affording an opportunity to be heard, require the party ... whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(4)(A). ANALYSIS Some of the discovery issues raised in Martinez’ motion remain unresolved. Martinez contends that MTC’s objections are without merit and that its responses are inadequate. MTC contends that Martinez requests seek broader discovery than the Federal Rules of Civil Procedure allow and that the unresolved issues present in this case arise from overly broad discovery requests. All parties believe that a court ruling is necessary to resolve those issues as to the objections that MTC raised to Martinez’ interrogatories and requests. Because the Court cannot say that Martinez’ discovery requests are fishing- expeditions seeking documents and information beyond the claims or defenses, or subject matter of her suit, the Court will grant her motion to compel and, for the reasons given in this opinion, enter an order compelling MTC to supplement their discovery responses as stated herein. The" }, { "docid": "22435435", "title": "", "text": "sanctions. B. “[T]he standard of review for an appellate court in considering an appeal of sanctions under [Federal Rule of Civil Procedure] 37 is sharply limited to a search for abuse of discretion and a determination that the findings of the trial court are fully supported by the record.” Carlucci v. Piper Aircraft Corp., 775 F.2d 1440, 1447 (11th Cir.1985) (internal quotation marks omitted). A district court abuses its discretion only when it misapplies the law or bases its decision on findings of fact that are clearly erroneous. Mincey v. Head, 206 F.3d 1106, 1137 n. 69 (11th Cir.2000). Therefore, we will not reverse the imposition of sanctions under Rule 37 unless we are “left with a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors.” Dorey v. Dorey, 609 F.2d 1128, 1135-36 (5th Cir.1980) (internal quotation marks omitted) (quoting Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 506 (4th Cir.1977)). A district court may award sanctions under Rule 37(a)(5)(B) only if, upon considering a Rule 26(c) motion for a protective order set against a Rule 37(a) motion to compel discovery, the court (1) denies the motion to compel because it was not “substantially justified,” and (2) issues the protective order. Fed.R.Civ.P. 37(a)(5)(B). In that case, unless “other circumstances make an award of expenses unjust,” the court may award the prevailing party the “reasonable expenses incurred in opposing the motion” to compel, including attorney’s fees. Id. Those sanctions may issue against the party seeking discovery, that party’s attorney, or both. Id. Rule 37(a)(5)(C) similarly permits a court to “apportion the reasonable expenses” incurred in opposing a motion to compel if the court denies in part and grants in part a party’s motion to compel. In the context of these two rules, a motion to compel is “substantially justified” so long as “there is a genuine dispute, or if reasonable people could differ as to [the appropriateness of the contested action].” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d" }, { "docid": "4967082", "title": "", "text": "taking of photographs without their consent, for some extraneous purpose. That the taking of photographs detracts from the required calm and serene atmosphere essential to the administration of justice is recognized by General Rule 36 of this court, which prohibits the taking of photographs in the courthouse and its environs. While we are unwilling to construe that rule to include sites outside the courthouse, as the Union urges, it clearly suggests that such extraneous intrusions, as those shown here, cannot be tolerated during discovery proceedings carried out under the protective umbrella of the federal rules. Finkelstein v. Boylan, 33 F.Supp. 657, 658-659 (S.D.N.Y.1940). Accordingly, plaintiff is directed not to use such photographs for any purpose. The Union seeks an award of expenses, including attorney’s fees, under Rule 37(a) (4), Fed.R.Civ.P. That rule, as amended in 1970, authorizes such an award on a motion for a protective order under Rule 26(c). Rule 37(a) (4) provides, in pertinent part: “If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” The notes of the Advisory Committee make clear that the test of whether opposition was substantially justified depends on whether “the dispute over discovery between the parties is genuine.” In other words, the Committee reports, expenses should not be awarded if “the losing party acted justifiably in carrying his point to court.” We think, therefore, that the Union’s request for costs and expenses must be denied because the issue raised by the Union was largely unprecedented and because plaintiff’s opposition was not frivolous. Accordingly, the Union’s motion to suppress the two photographs taken during the discovery session is granted. The Union's request for costs and expenses is denied. So ordered." }, { "docid": "19168305", "title": "", "text": "or (C) applies to the Council’s motion for fees. A Applicability of RCFC 37(a)(5)(A) or (C) Generally, Rule 37 addresses “consequences of a failure to respond properly to discovery.” 8B Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure, § 2282 (3d ed.2010). The current provisions of the Rule relate back to amendments to Fed.R.Civ.P. 37 adopted in 1970, which were designed to require courts to award expenses when a motion for an order compelling discovery is successful “unless the conduct of the losing party or person is found to have been substantially justified.” Fed.R.Civ.P. 37 advisory committee’s notes to 1970 amendments, subdiv. (a)(4); see also Federal Practice and Procedure, § 2281. In effect, ‘“to encourage judges to be more alert to abuses occurring in the discovery process,’” the Rule “encompass[es] a presumption that sanctions should be awarded unless one of the [exempting] conditions in the Rule is met.” Covad Commc’ns Co. v. Revonet, Inc., 262 F.R.D. 1, 2 (D.D.C.2009) (quoting Fed. R.Civ.P. 37 advisory committee’s notes to 1970 amendments, subdiv. (a)(4)); see also CANVS Corp. v. United States, 104 Fed.Cl. 727, 731-32 (2012). It is designed to encourage or secure compliance with the discovery rules, not to reward a party prevailing on a motion to compel. See 7 James Wm. Moore, et al., Moore’s Federal Practice, § 37.50[1][a] (3d ed. 2012) (citing Chilcutt v. United States, 4 F.3d 1313, 1324 (5th Cir.1993)); cf. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (concluding that the extreme sanction of dismissal was appropriate for discovery misconduct, while ob serving that the purpose of Rule 37 is “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent”). The procedural requirements for an award of fees and expenses have been met in this case. After the court issued its order of November 7, 2012, allowing discovery to commence, the Council sought discovery without success, and" }, { "docid": "16843538", "title": "", "text": "about plaintiffs on-the-job safety. Id. Defendant also claims that plaintiff had every opportunity to question Robert Davis, one of the employees identified by plaintiff as having concerns about plaintiffs safety record. Id. Finally, defendant notes that plaintiff gave defendant until July 30, 2004 and that, while preparing the current motion for discovery sanctions, plaintiff received defendant’s request for an extension until August 2, 2004, which the court, in fact, granted. Id. at 6. II. Legal Standard 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 thereof. See id. The court also has the authority to award reasonable expenses, including attorney’s fees, caused by the failure to obey a court order “unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” Id. Similarly, under Rule 37(c)(1), the court may impose sanctions on a party that, without substantial justification, fails to disclose information required by Rule 26(a) or 26(e)(1). Fed. R.Civ.P. 37(c)(1). According to the Supreme Court, a party meets the “substantially justified” standard when there is a “genuine dispute” or if “reasonable people could differ” as to the appropriateness of the motion. Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). A party’s actions are substantially justified if the issue presented is one that “could engender a responsible difference of opinion among conscientious, diligentf,] but reasonable advocates.” Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 200, 205 (D.D.C.1998) (citations omitted). District courts are entrusted with broad discretion regarding whether to impose sanctions under Rule 37, and the nature of the sanctions to be imposed. Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C.Cir.1996); Sturgis v. Am. Ass’n of Retired Persons, 1993 WL 518447" }, { "docid": "14932491", "title": "", "text": "Plaintiffs’ counsel’s failure to procure the depositions of certain parties out of their own perceived ‘professional courtesy’ in the face of a deadline of which all parties were aware ... [is] the Plaintiffs’ own loss.” The district court’s decision not to reward the Does for “permitting] the opportunity to depose the desired parties to slip through their fingers even as they held that opportunity in their hands” was well within the “broad discretion” that a district court has over the scope of discovery. See Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir.1998). Even if this were not the case, the reopening of Guy makes this issue moot. We therefore decline to hold that the district court abused its discretion by limiting discovery on this issue to 30 days. G.Attorney fees relating to the Does’ motion to compel 1. Whether the motion was substantially justified Rule 37(a)(4)(B) of the Federal Rules of Civil Procedure provides that if a motion to compel discovery is denied, the court ... shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the; reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. A motion is “substantially justified” if it raises an issue about which “there is a genuine, dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S.. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (citations and quotation marks omitted). As noted by the Supreme Court, “the one [connotation] most naturally conveyed by the phrase before us here [“substantially justified”] is not ‘justified to a high degree,’ but rather ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.” Id. This circuit has adopted a four-factor test to determine whether a district court’s decision to" }, { "docid": "2428342", "title": "", "text": "1, 10 (D.D.C.1999) (quoting Fed.R.Civ.P. 37(a)(4)(A)-(B)) (emphasis added); see also Alexander v. FBI, 186 F.R.D. 200, 207 (D.D.C.1999) (“Alexander II”). “[A] party only meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Alexander v. F.B.I, 186 F.R.D. 144, 147 (D.D.C.1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)); see Cobell v. Norton, 213 F.R.D. 1, 14 (D.D.C.2003); see also 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288 (1994) (“Making a motion, or opposing a motion, is ‘substantially justified’ if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule.”) However, it is well-established that “[ujnder Rule 37, the district court has broad discretion to impose sanctions for discovery violations[,]” and to determine what sanctions to impose. Bonds v. District of Columbia, 93 F.3d 801, 807 (D.C.Cir.1996) (citations omitted). See also Sturgis v. Am. Ass’n of Retired Persons, 1993 WL 518447 (D.C.Cir.1993); Steffan v. Cheney, 920 F.2d 74, 75 (D.C.Cir.1990). Accordingly, when assessing the reasonableness of the sanction imposed, a district court should consider that the purpose underlying Rule 37(a)(4)(C) is “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Alexander I, 186 F.R.D. at 98. When requesting attorney’s fees, the moving party bears the burden of proving that the request is reasonable. Stein v. Foamex Int’l, Inc., 204 F.R.D. 270, 271 (E.D.Pa. 2001) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990)). However, if the party opposing the fee request objects with specificity, the Court “has a great deal of discretion to adjust the fee award in light of those objections.” Rode, 892 F.2d at 1183 (citation omitted); see also Hensley" }, { "docid": "21153568", "title": "", "text": "Hanson, 859 F.2d 313, 317 (4th Cir.1988). B. Discussion 1. Substantially Justified If a Motion to Compel is granted “the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that ... objection was substantially justified....” Fed.R.Civ.P. 37(a)(4)(A). Defendant’s Motion to compel was granted on April 7, 2005. Plaintiff was afforded an opportunity to be heard on April 28, 2005. A court is required to award reasonable expenses, including attorney’s fees, against the party being required to produce discovery unless that party can demonstrate that it was “substantially justified” in withholding the requested information. See Rickels v. City of South Bend, 33 F.3d 785, 787 (7th Cir.1994). When a motion to compel is granted, the burden is on the opposing party to show that an award of costs would be unjust or that the opposing party’s position was substantially justified. Rickels, 33 F.3d at 787. The Supreme Court, in interpreting the meaning of “substantially justified” in connection with the Equal Access to Justice Act, found the phrase to mean “ ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.” 487 U.S. 552, 566, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). An individual’s conduct is found to be “substantially justified” if it is a response to a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Id. at 565, 108 S.Ct. 2541. See also Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2288 (1994) (“Making a motion, or opposing a motion, is ‘substantially justified’ if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule.”). Plaintiff was not substantially justified in objecting to respond to Defendant’s Interrogatories. Specifically, as discussed in the April 7," }, { "docid": "2428341", "title": "", "text": "against a party that opposed a motion to compel which is granted in part and denied in part, the language of Rule 37(a)(4)(C) provides, in relevant part, that “the court ... may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” Fed.R.Civ.P. 37(a)(4)(C). A party has received an adequate opportunity to be heard within the meaning of Rule 37(a)(4)(A) if “the respondent provides explanation for its actions or inactions” after the movant specifically re quests an award of costs and expenses incurred in filing a motion to compel. Alexander v. FBI, 186 F.R.D. 78, 98 (D.D.C.1998) (“Alexander I”). Here, the Court has afforded the defendants an opportunity to be heard through written memoranda. Courts have interpreted Rule 37(a) in a manner that permits denial of the apportionment of “expenses if it makes a finding of substantial justification as to any party’s position or if ‘other circumstances make an award of expenses unjust.’ ” Lohrenz v. Donnelly, 187 F.R.D. 1, 10 (D.D.C.1999) (quoting Fed.R.Civ.P. 37(a)(4)(A)-(B)) (emphasis added); see also Alexander v. FBI, 186 F.R.D. 200, 207 (D.D.C.1999) (“Alexander II”). “[A] party only meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if ‘reasonable people could differ’ as to the appropriateness of the motion.” Alexander v. F.B.I, 186 F.R.D. 144, 147 (D.D.C.1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)); see Cobell v. Norton, 213 F.R.D. 1, 14 (D.D.C.2003); see also 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288 (1994) (“Making a motion, or opposing a motion, is ‘substantially justified’ if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule.”) However, it is well-established that “[ujnder Rule 37, the district court has broad discretion to impose sanctions for discovery violations[,]” and to determine what sanctions to impose. Bonds v. District of Columbia, 93 F.3d 801, 807 (D.C.Cir.1996) (citations omitted). See also" }, { "docid": "8385377", "title": "", "text": "have waived their opposition to the plaintiffs’ motion to compel, or, in the alternative, to allow them to file their waiver motion as a supplemental pleading. Pis.’ Waiver Mot. The plaintiffs also filed a motion to alter the limits for the number of depositions and interrogatories, motions to refer the motion to alter and future discovery motions to a magistrate judge, and a motion to vacate existing discovery dates. The court turns first to the plaintiffs’ motion to compel, and then to the remaining discovery motions. III. ANALYSIS A. Legal Standard for a Motion to Compel Under Federal Rule of Civil Procedure 37(a), a party may move the court in which the action is pending for an order compelling disclosure. Fed.R.Civ.P. 37(a). The party must certify that the movant has conferred in good faith with the party refusing disclosure in an effort to avoid court action. Id. If the court grants the motion to compel, the court “shall, after affording an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees.” Id. 37(a)(4); see also Standing Order ¶ 9. This award of expenses is intended to “deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists.” Cobell v. Norton (“Cobell I”), 213 F.R.D. 16, 29 (D.D.C.2003) (quoting Fed.R.Civ.P. 37(a)(4) advisory committee’s note). A court may not award Rule 37 expenses, however, if it finds, inter alia, that “the opposing party’s nondisclosure, response, or objection was substantially justified.” Fed.R.Civ.P. 37(a)(4). An opposing party’s objection qualifies as “substantially justified” if “there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Cobell v. Norton (\"Cobell II\"), 213 F.R.D. 48, 61 (D.D.C.2003); see also 8a Fed. Prac. & Proc. § 2288 (stating that an objection to a motion is substantially justified “if the motion raised an issue about which reasonable people could" } ]

[ { "docid": "22122152", "title": "", "text": "to the fireman came from a man who was standing on the ground as the engine passed him. He says that it looked to him that the fireman then was looking through the front window at that time and that he continued in that position up to say fifty or sixty feet from the crossing of the tracks. The fireman was on the left on the side of the other approaching train, the engineer on the right where he could not see so well. But of course the witness could not testify which way the fireman turned his eyes after he saw only his back, and it is a mere speculation to argue that Savage did not do all that he could. Moreover, the statute makes it the personal duty of the engineer positively to ascertain that the train can safely resume its course. Whatever may have been the practice, he could not escape this duty, and it would be a perversion of the Employers’ Liability Act, (April 22, 1908, c. 149, § 3; 35 Stat. 65, 66,) to hold that he could recover for an injury primarily due to his failure to act as required, on the ground that possibly the injury might have been prevented if his subordinate had done more. See Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 443. If the engineer could not have recovered for an injury his administratrix can not recover for his death. Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 70. There is no .doubt that the statute of Illinois applied to this case. Judgment affirmed." } ]

[ { "docid": "17851790", "title": "", "text": "that reason he could not have “made sure” of the contrary. Besides, the operation was plainly drilling in the yard and the locomotive would normally go back to the thirty-five cars on the running track. Indeed the plaintiff has not argued otherwise. Therefore the only question is whether Van Derveer’s breach of the rule bars the action. When an injury to one employee results from the combined fault of himself and a fellow-worker, the damages are divided (section 53, title 45, U.S.Code [45 U. S.C.A. § 53]); but an exception has grown up when the injured employee’s fault is the violation of a rule or an express instruction. Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732, is scarcely an instance, though sometimes cited as such. It is better classed as a case where the injured person, having before him the consequences of another’s fault, does not do what he can to avoid them. The exception first appeared, so far as we can find, in Frese v. Chicago, B. & Q. R. Co., 263 U.S. 1, 44 S.Ct. 1, 68 L.Ed. 131, where a locomotive driver failed to stop his train at a crossing, as required by a rule of the road. He was of course on the right side of his cab and his fireman was on the left, whence came the colliding train; the court seemed to think it doubtful whether the fireman had kept a bad lookout, but went on to say that since the duty was primarily the driver’s, it was irrelevant whether he had or not. It has at times been questioned whether the decision should not be limited to- situations where the injured person is the superior of the other employee on whose fault he must rely to recover. That would explain not only Frese v. Chicago, B. & Q. R. Co., supra, but Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224, because the deceased conductor directed the driver to go on, contrary to the rule. True, the despatcher was also" }, { "docid": "6804753", "title": "", "text": "Co. v. Archibald, 170 U. S. 665,18 S. Ct. 777, 42 L. Ed. 1188; Choctaw, Oklahoma & Gulf R. Co. v. McDade, 191 U. S. 64, 24 S. Ct. 24, 48 L. Ed. 96; Schlemmer v. Buffalo R. & P. R. Co., 220 U. S. 590, 31 S. Ct. 561, 55 L. Ed. 596; Seaboard Air Line v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Ches. & Ohio Ry. v. De Atley, 241 U. S. 310, 36 S. Ct. 564, 60 L. Ed. 1016; Ches. & Ohio Ry. v. Proffitt, 241 U. S. 462, 36 S. Ct. 620, 60 L. Ed. 1102; Boldt v. Pa. R. Co., 245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385. Applying the test of the well-established doctrines announced in these cases to the present controversy, does the evidence show that decedent knew the Twenty-Pirst street bridge had a low clearance, and that there were no telltales to warn a person on top of ears about to pass thereunder of the danger, dr that the danger from low clearance and lack of telltales was so plainly obvious that under the circumstances as a reasonably prudent person he should have known and appreciated it? Decedent was a member of the train crew employed on the St. Louis Merchants’ Bridge Terminal Railway Company in the city of St Louis. At the time of his injury and death, the train upon which he was engaged was moving in the yards of the Terminal Railroad Association of St. Louis with ears for delivery to the Missouri Pacific and Wabash Railways, having come over the Merchants’ Bridge Terminal Railway in the usual course of transportation from the north and east into the city of St. Louis. The train came down an incline from the elevated tracks, passing under the viaduct at Twelfth street, which is located about where the tracks reach the Union Station territory. In proceeding to its destination, this train would pass under the Fourteenth, Eighteenth, and Twenty-Pirst street overhead" }, { "docid": "4391342", "title": "", "text": "his death. That the distinction is fundamental and based upon logic and reason is emphasized by the opinion of the state court which first reviewed the Goneau Case. Goneau v. Minneapolis, St. Paul & S. S. M. Railway Co., 154 Minn. 1, 191 N. W. 279. The court reviewed numerous cases and held that under the rule established therein the defective coupler would be the proximate cause of the accident if the brakeman fell while engaged in adjusting the coupling, as he claimed, but would not be the proximate cause of the accident if he fell after the coupling had been made and after he had stepped to the side to give a signal, or for a purpose having no relation to the making of the coupling. In Bohm v. Chicago, Milwaukee & St. Paul Railway Company, 161 Minn. 74, 200 N. W. 804, the same state court, after its decision in the Goneau Case had been affirmed by the United States Supreme Court, had occasion to consider the question of causal relation between a failed appliance and an injury which followed. In the Bohm Case a brakeman in the nighttime put a lantern upon his arm, started down a ladder at the side of a car for the purpose of “bleeding” brakes which were “squealing.” The train was moving slowly over- a bridge. Without lowering his lantern to see what was beneath him, the brakeman stepped off the ladder, fell through the bridge, and sustained injuries. The action was brought under the Federal Safety Appliance Act, and the sole question presented was whether the defective brake was the proximate cause of the injury. The trial court rendered judgment for the defendant notwithstanding a verdict, the Minnesota Supreme Court affirmed it, and the United States Supreme Court denied certiorari. Bohm v. Chicago, Milwaukee & St. Paul Railroad, 267 U. S. 600, 45 S. Ct. 355, 69 L. Ed. 807. In Erie R. Co. v. Caldwell, supra, a train parted on a grade because of the failure of a coupling device. The plaintiff therein was in a place of safety. He" }, { "docid": "9367818", "title": "", "text": "curve Majors heard the train stop at the summit. He then knew that the flag warning had been given, and so he called back the extra man; but.in a few minutes, hearing the train running again, and “working too fast” Majors sent the man up again. This man came in view of the train, and gave it the “wash out” signal just when the enginemen saw the trackmen — about 700 feet from the derailment. It is apparent that, if the second flag had been sent out and stationed at this distance of 700 feet — a distance ordinarily sufficient to enable a train under fair control to stop — it could have made no difference in the result, because at that point Hylton had full knowledge of the danger. See Copeland v. Hines (C. C. A. 6) 269 F. 363. In this situation we think it clear that Hylton’s general disobedience of the 19' order and his specific and voluntary release of control because he had misjudged the distance of the danger constituted the sole efficient cause of the disaster, and the absence of any further second flag cannot be treated as a substantially contributing cause. The recent decisions of the Supreme Court require this conclusion. The controlling principle, though arising under different facts, is stated in Great Northern Railway Co. v. Wiles, 240 U. S. 444, 448, 36 S. Ct. 406, 408, 60 L. Ed. 732. A freight train broke in two, due, as the court assumes, to the company’s negligence. Wiles was the rear brakeman. It was his duty to go back and flag the following train. He did not do so, and he was killed in the ensuing rear-end collision. His .representatives brought the suit. In reversing the judgment for plaintiff, the Supreme Court said: “There is no justification for a comparison of negligences or the apportioning of their effect. :: * *' In the present case there was nothing to extenuate Wiles’ negligence; there was nothing to confuse his judgment or cause hesitation. His duty was as clear as its performance was easy.” In Frese" }, { "docid": "11972502", "title": "", "text": "A. 1915C, 1, Ann. Cas. 1915B, 475. “The visible conditions may have been of recent origin, and the danger arising from them may have been obscure. In such oases, and perhaps others that could be stated, the question of the assumption of the risk is plainly for the jury. But where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence, and adequate experience, and all these elements of the problem appear without contradiction, * * * the question becomes one of law for the decision of the court.” Butler v. Frazee, 211 U. S. at page 466, 29 S. Ct. 136, 138, 53 L. Ed. 281. Very many authorities to the same effect are collected in St. Louis Cordage Co. v. Miller (C. C. A.) 126 F. 495, 511, 63 L. R. A. 551. Williford’s full- age, good intelligence, four months’ experience about this power plant, and special warnings of train risks, leave no room to doubt that he knew he must use his eyes and not rely on his ears, and that to come from behind the power plant, wherever placed, and step on the track without looking for trains, was always dangerous; and that these risks were consciously assumed by him. On the occasion of his death, without necessity in his work and with knowledge that a train was momentarily expected, he went from behind the power plant on the track without looking and with no sufficient opportunity to the train crew to see his danger. The negligence was his and not the master’s. The ease of Rocco v. Lehigh Valley R. Co., 288 U. S. 275, 53 S. Ct. 343, 77 L. Ed.-,’ is not in point. The deceased there had to ride over the track to inspect it, and the duty to do so was urgent because of storm conditions, all of which was known to the crew of the approaching" }, { "docid": "6909413", "title": "", "text": "after the string of cars from track 6 had been.pushed onto track 5 and coupled to the portion of the train already there. This operation would take a little time, and plaintiff in the mean time went to a nearby “dugout” to get warm. This was a small shanty or lean-to, containing an improvised stove which the trainmen were accustomed to keep heated with coal which could be gathered along the tracks. At the dugout, plaintiff found the conductor of his train, who told him to put more coal on the fire and then to assist in shifting the caboose on track 7. Plaintiff took a shovel, and, without his lantern, went onto the tracks to get coal. While scraping up coal on track 5, he was struck by the yard engine, which he testified backed down upon him without sounding the customary signal and without carrying the customary light upon the rear of the tender. The injury necessitated amputation of plaintiff’s leg. The argument of appellant is that at the moment of the accident the plaintiff was not engaged in work connected with the movement of an interstate train, but was doing something solely for his own comfort and that of other employees who might rest in the shelter between orders. We cannot accede to this contention. Plaintiff’s work in assisting to make up the interstate train had not ended; there was merely a pause in his active duties. This distinguishes Erie R. R. Co. v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319, relied upon by appellant. During that pause he was at liberty to go to the dugout for shelter, to build or keep- up a fire for his comfort, and to gather coal for that purpose in the customary manner, without changing the character of his interstate employment. Nothing in such conduct would be inconsistent with his duty to his employer. As was said in North Carolina R. Co. v. Zachary, 232 U. S. 248, 260, 34 S. Ct. 305, 309, 58 L. Ed. 591, Ann. Cas. 1914C, 159, a stronger" }, { "docid": "4391343", "title": "", "text": "failed appliance and an injury which followed. In the Bohm Case a brakeman in the nighttime put a lantern upon his arm, started down a ladder at the side of a car for the purpose of “bleeding” brakes which were “squealing.” The train was moving slowly over- a bridge. Without lowering his lantern to see what was beneath him, the brakeman stepped off the ladder, fell through the bridge, and sustained injuries. The action was brought under the Federal Safety Appliance Act, and the sole question presented was whether the defective brake was the proximate cause of the injury. The trial court rendered judgment for the defendant notwithstanding a verdict, the Minnesota Supreme Court affirmed it, and the United States Supreme Court denied certiorari. Bohm v. Chicago, Milwaukee & St. Paul Railroad, 267 U. S. 600, 45 S. Ct. 355, 69 L. Ed. 807. In Erie R. Co. v. Caldwell, supra, a train parted on a grade because of the failure of a coupling device. The plaintiff therein was in a place of safety. He leaped upon the detached portion of the train, which was moving slowly, in order to set the brake and thereby avoid a collision. He was too late, and was injured. Here also the fundamental distinction exists between the facts of the authority relied upon and the facts of the. instant case, although there is again a partial analogy. Reetz and Caldwell were both in a place of -safety when the appliance failed. Both responded to the call of duty, Reetz in endeavoring to locate the trouble, and Caldwell in attempting to prevent a collision. The fundamental difference between the two cases, however, is as clear as that between the instant ease and the Goneau Case. Caldwell was injured in a collision that was the direct result of the failed appliance. Reetz was not. It is true that in the Caldwell Case Judge Donahue used language which taken from its context would seem to indicate that the court felt that the criterion of liability is whether the duty in which the injured man was engaged was" }, { "docid": "6908031", "title": "", "text": "delivery tracks. The distance moved was about 4,800 feet and the movement was continuous from the “P” yard to the “Hay” yard. It was not a mere switching operation, but was a transfer movement of the 24 cars from one distinct entity; known as “P” yard, to another entity, known as the “Hay” yard. The switching, as distinguished from train movement, was after the cars had reached the “Hay” yard, or lead track there. In moving the cars down the main track they were exposed to hazards themselves, and exposed other trains operating on the main line to hazards which made essential the appliances for quickly stopping, and such is the very purpose of the act. The mere fact that the railroad company designates a large stretch or tract as yard does not make every operation therein a switching operation. If so, the act could be avoided by including large areas in the term yard. These cars, so operated, constituted a train within the purview of section 8605, U. S. Compiled Statutes, and under the order of the Interstate Commerce Commission made in pursuance of the statutes 85 per cent, of such train must be so equipped with power or train brakes that the engineer can control the speed without requiring brakemen to use the common hand brake. This train was not so equipped, and the case falls within the doctrines announced in U. S. v. Erie R. Co., 237 U. S. 402, 35 Sup. Ct. 621, 59 L. Ed. 1019; U. S. v. C., B. & Q. R. Co., 237 U. S. 410, 35 Sup. Ct. 634, 59 L. Ed. 1023; U. S. v. Northern Pac. Ry. Co., 254 U. S. 251, 41 Sup. Ct. 101, 65 L. Ed. 249; Louisville & Jeffersonville Bridge Co. v. U. S., 249 U. S. 534, 39 Sup. Ct. 355, 63 L. Ed. 757; U. S. v. Galveston, H. & H. R. Co., 255 Fed. 755, 167 C. C. A. 101. _ _ The findings of the District Court are supported by substantial evidence, and the application of the law was correct. Judgment" }, { "docid": "5902079", "title": "", "text": "was not of a duty owing to Mihas; and the rule is well established that it is not sufficient for a complainant to show that he has been injured by the failure of another to perform a duty or obligation unless that duty or obligation was one owing to the complainant. * * * “There is nothing in the record to show that employees engaged in the switching operation knew or had reason to believe that Mihas was in any position of danger. In the absence of such knowledge or ground for belief, they were not required to warn him of the impending switching operation or take other steps to protect him. Toledo, St. L. & W. R. R. v. Allen, 276 U. S. 165, 173, 48 S. Ct. 215, 72 L. Ed. 513.” Plaintiff’s intestate was not of the class for the protection of which the rule or custom was designed, and, under the decisions of the Supreme Court to which we have referred, and others, he assumed the risk of accidents ordinarily incident to his employment. Chesapeake & Ohio Ry. Co. v. Mihas, 280 U. S. 102, 50 S. Ct. 42, 74 L. Ed. 207; Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914; Boldt v. Penn. R. Co., 245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385; Di Caprio v. N. Y. C. R. Co., 231 N. Y. 94, 131 N. E. 746, 16 A. L. R. 940. It is, however, contended by the plaintiff that she may recover without regard to any violation of rule or custom by the backing train because Eastwood, who was operating the speed car, was negligent in running it at a high speed and allowing it to collide with the passenger train. But the difficulty with this contention is that the complaint did not seek to recover for the negligence of Eastwood, and, if negligence is to be imputed to defendant by reason of the acts of Eastwood, it should be amended before a new trial. The complaint" }, { "docid": "15673734", "title": "", "text": "TRIEBER, District Judge (after stating the facts as above). Did the court err in refusing to direct a verdict in favor of the defendant? The general rule is that questions of negligence do not become questions of law, which justify the direction of a verdict, except where all reasonable men must draw the same conclusions from the evidence. Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 258, 29 Sup. Ct. 619, 53 L. Ed. 984; Delk v. St. L. & S. F. Ry. Co., 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590; Hart v. Northern Pacific R. Co., 196 Fed. 180, 116 C. C. A. 12. In our opinión the plaintiff was entitled to have the cause submitted to the jury upon the undisputed evidence. That evidence, established that the decedent was on the track in the discharge of his employment by the city, engaged in the construction of a sewer under the defendant’s tracks; that an excavation had been made between these tracks, and he was handing to the workmen below sheathing necessary in the construction of the sewer; that while so employed a train, consisting of a locomotive and five freight cars, backed to the place where he was at work, ran over him and injured him so seriously that he died shortly thereafter from said injuries; that there was no guard at that place to warn him, nor a Itrakeuian on the rear end of the train to warn the decedent or signal to the engineer of the danger to one on the track in order that he might stop the train and prevent the destruction of human life. Evidence that a railway company backed a train of five cars over a place where it was known laborers were engaged in work, without any precautions to warn them of the approach of the train whereby the injury could have been prevented, is clearly sufficient to require the submission to the jury whether the railway company exercised due care for the safety of men working at that place, when, as was" }, { "docid": "10875559", "title": "", "text": "of this case which must be recognized) and applied. Among them are these: (a) That a railroad track in active use is per se a warning of danger and that any one is thereby admonished that a train is liable to pass over it any time., (b) That no one, whether passenger, licensee, or trespasser, can approach a railroad track so near as to be hit by a passing train without first both looking and listening to ascertain whether a train is apprbaching which might injure him. And a fortiori (c) that no one, whether passenger, licensee, or trespasser, can frequent or walk over a private railroad yard covered by many tracks employed constantly for a variety of purposes like through travel, switching, breaking up and making up trains without scrupulously observing the precaution just alluded to, and otherwise exercising the utmost degree of vigilance in looking out for approaching engines and trains. Kansas City, Ft. S. & M. R. Co. v. Cook, 13 C. C. A. 364, 66 Fed. 115, 28 L. R. A. 181; Garlich v. Northern Pac. Ry. Co., 67 C. C. A. 237, 131 Fed. 837; Chicago, R. I. & P. Ry. Co. v. Baldwin, 90 C. C. A. 630, 164 Fed. 826. Great is his peril, and proportionately great should be his effort to protect himself therefrom. Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361. The foregoing are not only injunctions imposed by the law of the land, but they are so plainly the dictates of common prudence that no one attempts to gainsay them. Again, the law of the national courts and of the state courts when unaffected by local statutes is that one whose injury or death is occasioned by negligence of his own, which in any dtegree proximately contributed to it, cannot recover from another whose negligence also contributed to it or whose negligence may have been the primary cause of it. One cannot unreasonably expose himself to danger, inspired by any expectation of remuneration, for a consequent injury, from any" }, { "docid": "332556", "title": "", "text": "to his employee in failing to protect him from dangers which cannot be escaped by any one doing such work. Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68. “It is obvious that, even where a railroad operates its trains and moves its switch drafts in a proper and careful manner, trackwalkers and repairmen are necessarily subjected to great risks. Their very occupation is one of constant peril. Indeed, it follows from the nature of such employment that the duty of self-preservation has to rest on them, for no adequate protection, other than self-protection, can be afforded them. And such has been the reasonable holding of the law. Thus in Norfolk & W. Ry. Co. v. Gesswine, 144 Fed. 56, 75 C. C. A. 214, it was said: ‘This man was one of a number of men who were employed as section men on the railroad. They were engaged in repairing the track, taking out rails, putting in new ones, taking out cross-ties and putting in new ones, and hewing them into proper form and shape, and were working on the railroad track, while the trains were being operated in the usual way; manifestly, a place of danger. A railroad does not suspend the operations of its trains until the track can be put in order, and the proposition to these seetionmen was, “We will run the trains and operate the road as heretofore, as we ordinarily do, and between trains you must do this work and look out for yourselves to avoid being injured by the trains,” and the sec-tionmen accept the employment upon these terms, and if an accident occurs, and they are hurt while the trains are being managed and operated in the usual and ordinary way, they can have no just ground of complaint against the railroad. It is not the fault of the railway company.’ “So, also, in Aerkfetz v. Humphreys, 145 U. S. 418 (12 Sup. Ct. 835, 36 L. Ed. 758), where an experienced trackman was injured by a" }, { "docid": "21522374", "title": "", "text": "Industrial Commission Case were that the employee was engaged in overhauling a dismantled engine which had been used and would again be used in interstate commerce. It was held the employee was not engaged in interstate commerce. In St. L. S. F. T. R. Co. v. Seale, 229 U. S. 156, 161, 33 S. Ct. 651, 653 (57 L. Ed. 1129, Ann. Cas. 1914C, 156) the test was applied to a clerk who was injured while he was on his way through a railroad yard to meet an inbound interstate freight train, and to mark the ears so that the switching crew would know what to do with them when breaking up the train. It was held he was engaged in interstate commerce. The court said: “The train from Oklahoma was not only an interstate train, but was engaged in the movement of interstate freight, and the duty which the deceased was performing was connected with that movement, not indirectly or remotely, but directly and immediately.” In North Car. R. Co. v. Zachary, 232 U. S. 248, 260, 34 S. Ct. 305, 309 (58 L. Ed. 591, Ann. Cas. 1914C, 159) the test was applied where a fireman, having prepared his engine for a trip in interstate commerce, and being about to start on his run, was walking across adjacent tracks on an errand consistent with Ms duties. The court said: “ * * * It is said that because deceased had left his engine and was going to his boarding house, lie was engaged upon a personal errand, and not upon the carrier’s business. Assuming (what is not clear) that the evidence fairly tended to indicate the boarding house as his destination, it nevertheless also appears that deceased was shortly to depart upon his run, having just prepared Ms engine for the purpose, and that-he had not gone beyond the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the boarding house was at all out of the ordinary, or was inconsistent with Ms duty to his employer. It" }, { "docid": "5178564", "title": "", "text": "go into further details as -to Goodman’s precise situation, beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a man goes upon a railroad track he knows that he goes to a plaee where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop. It is true as said in Flannelly v. Delaware & Hudson Co., 225 U. S. 597, 603, 32 S. Ct. 783, 56 L. Ed. 1221, 44 L. R. A. (N. S.) 154, that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the Courts. See Southern Pacific Co. v. Berkshire, 254 U. S. 415, 417, 419, 41 S. Ct. 162, 65 L. Ed. 335.” However, we are here more directly concerned with an accident in which an automobile is driven into the side of a train standing or slowly moving across a railroad crossing. In this respect also the courts have spoken. In Phillips v. Davis (C. C. A. 3) 3 F.(2d) 798, at page 799, 40 A. L. R. 1241, the point under consideration is" }, { "docid": "9367819", "title": "", "text": "sole efficient cause of the disaster, and the absence of any further second flag cannot be treated as a substantially contributing cause. The recent decisions of the Supreme Court require this conclusion. The controlling principle, though arising under different facts, is stated in Great Northern Railway Co. v. Wiles, 240 U. S. 444, 448, 36 S. Ct. 406, 408, 60 L. Ed. 732. A freight train broke in two, due, as the court assumes, to the company’s negligence. Wiles was the rear brakeman. It was his duty to go back and flag the following train. He did not do so, and he was killed in the ensuing rear-end collision. His .representatives brought the suit. In reversing the judgment for plaintiff, the Supreme Court said: “There is no justification for a comparison of negligences or the apportioning of their effect. :: * *' In the present case there was nothing to extenuate Wiles’ negligence; there was nothing to confuse his judgment or cause hesitation. His duty was as clear as its performance was easy.” In Frese v. Chicago, etc., R. Co., 263 U. S. 1, 44 S. Ct. 1, 2, 68 L. Ed. 131, there was a collision at a grade crossing of two railroads. One of the engineers was killed, and this action against his employer resulted. His contributory negligence was not involved. It was his duty under the rules (and it was no different duty because it was also required by statute) to bring his train to a full stop and ascertain that the way was clear before proceeding. He brought his train to a stop, and proceeded, and was in collision. The other train was approaching frojn the fireman’s ride, and it was plainly the fireman’s duty to keep watch for such approach and give notice to the engineer. The fireman had neglected this duty. Without that neglect, the collision would not have occurred. The court denied any recovery on behalf of the engineer, and said: “Moreover the statute makes it the personal duty of the engineer positively to ascertain that the train can safely resume its course." }, { "docid": "332560", "title": "", "text": "481, 79 N. W. 688; Pennsylvania R. Co. v. Wachter, 60 Md. 395.” In Curtis, Adm’r, v. Erie R. R. Co., 267 Pa. 227, 109 Atl. 871, where the decedent was employed to repair tracks and remove snow. and ice from the yard of the defendant company, and while carrying it across the tracks, was struck by a switching engine operated in the usual way, moving backwards without warning, running 2 or 3 miles an hour, recognizing the doctrine of assumption of risk as modified by the federal Employers’ liability Act, and defined in Seaboard Air Line R. R. v. Horton, 233 U. S. 498, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, and Boldt, Adm’x, v. Penn. R. R., 245 U. S. 441, 38 Sup. Ct. 139, 62 L. Ed. 385, the court held that since the evidence was insufficient to establish a custom to provide protection by furnishing a lookout for trains using the tracks of the switching yard, and there was no proof of any rule or custom requiring those in charge of the engine engaged in switching cars to ring a bell or sound a whistle, it was not negligence on the part of the company to afford such protection or to neglect giving such warning; and that the danger of being injured by the engine in the absence of these precautions was a risk assumed by a yard workman as incident to the employment. It is true that some distinction has been recognized in favor of accidents occurring on main line tracks. For instance, in Van Zandt v. P., B. & W. R. R., 248 Pa. 276, 93 Atl. 1010, Glunt v. Penna. R. R., 249 Pa. 522, 95 Atl. 109, and McGovern v. P. & R. Ry., 235 U. S. 389, 35 Sup. Ct. 127, 59 L. Ed. 283, the accident occurred while the injured person was engaged in work on main line tracks. The same distinction appears in Seaboard Air Line R. R. v. Koennecke, 239 U. S. 352, 355, 36 Sup. Ct. 126," }, { "docid": "7554518", "title": "", "text": "by considering the physical position of the employs at the moment of injury. If he is hurt in the course of his employment while going to a ear to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the federal act, although the accident occurred prior to the actual coupling of the engine to the interstate cars. * * * Each case must be decided in the light of the particular facts, with a view of determining whether, at the time of the injury, the employé is engaged in interstate business, or in an act which is so directly and immediately connected with such business as substantially to form a part or a necessary incident thereof.” To assist in raising a wrecked car to rescue fellow employés, and incidentally to clear the track f'or interstate commerce, was held to be work of an interstate character. Southern R. Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69. Where two loaded cars coming from without the state were received at the •railroad yard, and switching movements necessary to place the cars on private tracks were indulged in, it was held to be work incident to interstate commerce. Pennsylvania Co. v. Donat, 239 U. S. 50, 36 Sup. Ct. 4, 60 L. Ed. 139. Examining the character of the act which was being performed by the plaintiff in error at the time of his injury, we think he was engaged in the work of preparing a train which was to move out of the state of Pennsylvania into New York state. A necessary part of this work was to drill the cars in making up the train. The removal of a purely intrastate car, or one which was simply to be shifted in the yard, and thus to facilitate the interstate movement of the train, justifies the claim of the plaintiff in error that he, at the time, was engaged in an act which was directly and immediately" }, { "docid": "13213511", "title": "", "text": "Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914, are typical. These eases hold that it is the duty of a person employed on the tracks of a railroad to exercise vigilance for his own safety, to keep out of the way of moving trains, at least on straight tracks, and that an employee working on a roadbed assumes the risk incident to such employment. In such eases the railroad does not owe the workman the duty of warning him of the approach of trains. In the case of Connelley v. Pennsylvania Railroad Company, supra, this court, speaking through Judge Buffington, said: “It is an obvious fact that many occupations, as for example a powder mill operator, a structural iron worker, a diver, a blaster, a trackwalker, necessarily subject those who follow them to great dangers. When therefore a man contracts for such employment, he knows and takes on himself the risks and dangers incident to such dangerous work. His assumption of those obvious and unavoidable risks is in the very nature of things part of his employment. It follows therefore that the employer violates no legal duty to the employee in failing to protect him from dangers which cannot be escaped by any one doing such work. Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 F. 298, 37 C. C. A. 499, 48 L. R. A. 68. “It is obvious that, even where a railroad operates its trains and moves its switch drafts in a proper and careful manner, track-walkers and repairmen are necessarily subjected to great risks. Their very occupation is one of constant peril. Indeed, it follows from the nature of such employment that the duty of self-preservatioñ has to rest on them, for no adequate protection, other than self-protection, can be afforded them. And such has been the reasonable holding of the law.” The Supreme Court in the Nixon Case, supra, cited with approval the Connelley Case and said that the railroad company, under the circumstances, was entitled to. expect self-protection from its employees, and that the duty of" }, { "docid": "7684254", "title": "", "text": "the view of approaching trains, confusion caused by trains approaching simultaneously from opposite directions, or other peculiar circumstances tending to mislead the injured party as to the existence of danger in crossing the track.” In Railroad Co. v. Griffith, 159 U. S. 603, 16 Sup. Ct. 105, 40 L. Ed. 274, the court held that the question of the plaintiff’s contributory negligence was properly left to the jury. An important fact leading to that decision was that the highway on which she was driving proceeding towards the crossing passed into “a cut, and then there was no view of the railroad whatever to the south on account of the highway being cut down and the growing corn on that side.” In Nelson v. Railroad Co., 40 C. C. A. 673, 100 Fed. 731, Nelson was killed wdiile crossing the track to carry mortar to a depot that was building. The court held that the question of Nelson’s negligence was for the jury, it having been proved that a car on the side track obstructed the view of the approaching train, and that there was noise of escaping steam from a nearby engine, so that the sound of the train probably could not be heard. In that case the court laid stress on the fact that Nelson could not see the train because of a curve in the track, till it was within 330 feet of him; saying that,' “if it was going at the rate of 40 miles an hour, it would go 330 feet in less than 6 seconds.” In Jones v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. 118, 32 L. Ed. 478, the plaintiff walked out of the depot by the usual way, and was struck by a passing train be tween the wall of the depot and the platform. The circuit court directed a verdict for the defendant. The case was reversed on error, because the evidence tended to show that a car on the side track obstructed the plaintiff's view of the approaching train, and, although he had listened, there was so much" }, { "docid": "9367820", "title": "", "text": "v. Chicago, etc., R. Co., 263 U. S. 1, 44 S. Ct. 1, 2, 68 L. Ed. 131, there was a collision at a grade crossing of two railroads. One of the engineers was killed, and this action against his employer resulted. His contributory negligence was not involved. It was his duty under the rules (and it was no different duty because it was also required by statute) to bring his train to a full stop and ascertain that the way was clear before proceeding. He brought his train to a stop, and proceeded, and was in collision. The other train was approaching frojn the fireman’s ride, and it was plainly the fireman’s duty to keep watch for such approach and give notice to the engineer. The fireman had neglected this duty. Without that neglect, the collision would not have occurred. The court denied any recovery on behalf of the engineer, and said: “Moreover the statute makes it the personal duty of the engineer positively to ascertain that the train can safely resume its course. Whatever may have been the practice he could not escape this duty, and it would be a perversion of the Employers’ Liability Act [45 USCA § 53] to hold that he could recover for an injury primarily due to his failure to act as required, on the ground that possibly the injury might have been prevented if his subordinate had done more.” The only suggested distinctions between that case and this ar,e as between a statute and a train dispatcher’s express order, and as between a subordinate and an employee in another department. We see no substance in these distinctions. In Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33, 69 L. Ed. 212, Kennedy’s representatives brought an action under the Federal Employers’ Liability Act. Kennedy had been the engineer of train No. 4, going west from Nashville. He collided with train No. 1 coming, east to Nashville. There were double tracks at Nashville uniting into one a little further west. Under train schedules, No. 1 had the right of way, and the" } ]

[ { "docid": "22990028", "title": "", "text": "for damages. 87 F.Supp. 203. We think that the district court was right in holding that in the absence of evidence of negligence or unseaworthiness the respondent was not liable for failing to provide a safe place to work. “If,” as Chief Judge Kirkpatrick said in his opinion, 87 F.Supp. 203, 205, “the place where a seaman works is. unsafe that is a fact which may establish that the ship was unseaworthy or that t'he employees were negligent, but” there is “no basis for holding that there is a third and separate ground of liability in this regard.” In the .present case the district court concluded that the evidence failed to establish negligence. There being no evidence as to how long a time the Jello had been on the step prior to the accident, a finding that the ship’s officers were negligent in failing to remove it after they knew or should have known of its existence would, we think, not hav-e been warranted. Nor can we say that the district court erred in concluding that unseaworthiness had not been proved. Undoubtedly the owner has a duty at the commencement of the voyage to furnish a vessel and appliances which are seaworthy in all respects. It is equally settled that he has a continuing duty to keep the vessel’s appliances in order and to maintain the vessel itself in a seaworthy condition during the voyage. His liability for failure to per form these duties is a species of'liability without fault not limited by conceptions of negligence. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. We agree with the district court, however, that the doctrine of unseaworthiness does not extend so far as to require the owner to keep appliances which are inherently sound and seaworthy absolutely free at all times from transitory unsafe conditions resulting from their use, as happened in the case before us. Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 66 S.Ct. 455, 88 L.Ed. 561, is urged to the contrary. But that case is clearly distinguishable. There the" } ]

[ { "docid": "2898224", "title": "", "text": "contributorily negligent and that finding is not clearly erroneous. The district court awarded damages in the total amount of $66,000.00 against which it credited $1,610.00 which had been paid plaintiff in compensation. The appellant insists that the court awarded excessive damages and allowed a double recovery. Plaintiff was 39 years of age at the time of the accident. His injuries were to his head, right ear, back and right leg. There was evidence that the injuries to plaintiff’s ear and to his back were permanent. The district court found that plaintiff had lost wages and earnings capacity which will probably extend to the end of his life; that he had suffered physical pain and mental anguish and will probably continue so to suffer to the end of his life. Finally the district court found that: “As a direct and proximate result of his injury plaintiff has suffered a loss of physical capacity, other than his capacity to earn wages, which will in all reasonable medical probability continue to the end of his life. “The present reasonable cash value of all compensable damages sustained by plaintiff as a direct and proximate cause of his injuries is $66,000.00 and plaintiff is entitled to recover judgment in that amount against defendant.” The appellant complains that the court entered judgment for a lump sum without allocating damages to the various elements which the court considered. We are cited to no law requiring such an allocation, and in our opinon that is a matter within the discretion of the district court. The appellant insists that the award of damages for “a loss of physical capacity other than his capacity to earn wages” allows a double recovery. On motion for new trial the district court found that no double recovery was awarded plaintiff, that the various elements of compensable damage are separate and distinct, that each element is supported by the evidence, and that the defendant’s dissatisfaction with the form of the findings and conclusions did not require the court to assign specific dollar values to each element of damage. We cannot hold the award of" }, { "docid": "8586925", "title": "", "text": "MANSFIELD, Circuit Judge: Appellant, an 18-year old trackman employed by the Long Island Rail Road (“Railroad” herein), brought suit against it under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA” herein) for damages for injuries sustained when a fellow.worker engaged in driving railroad spikes struck a rail, causing a piece of steel to fly off and to pierce appellee’s left eye with the result that he suffered great pain, a permanent loss of vision in his left eye and was hospitalized for a long period. The Railroad appeals from a judgment against it based on a jury verdict awarding $250,000 damages, claiming (1) that there was insufficient evidence of negligence to support a finding of liability, (2) that the district court erred in admitting evidence of related pain in plaintiff’s right eye, which had not been alleged or claimed before trial, (3) that it was an abuse of discretion on the part of the court not to order a new trial because of prejudicial improprieties on the part of plaintiff’s counsel in his summation, and (4) that the amount of the award was excessive. We affirm. Construing the proof most favorably to the plaintiff, there was sufficient evidence to support a finding that negligence on the part of the Railroad had played a role in causing plaintiff’s injury, which is the test. See Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Kuberski v. New York Central Railroad Co., 359 F.2d 90, 93 (2d Cir. 1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1475, 18 L.Ed.2d 600 (1967); Eaton v. Long Island Railroad Co., 398 F.2d 738 (2d Cir. 1968). For example there was proof that, although the Railroad’s rules specified that safety goggles be worn by employees located in the vicinity of activities such as spiking, Railroad supervisors had relaxed enforcement of the rule, permitting employees to dispense with wearing glasses and failing to replace the safety glasses of Mileski and others after they had broken. The jury could reasonably have inferred that if the safety glasses had" }, { "docid": "8546570", "title": "", "text": "the circumstances of the accident and the extent of the claimant’s injuries. In result, looking at the case as a whole, I am not satisfied that the amount of the award made is inadequate. I cannot say the Commissioner’s finding as to some contributory negligence was clearly erroneous. The determination of the Commissioner was necessarily in the nature of a jury verdict. The claimant appeared in person before the Commissioner who had the opportunity to see and hear him and to observe his then physical condition. His proctor contends that the award should have been at least $10,000 or more and refers for comparison to awards of about that amount or more in several recent cases of seamen who had sustained leg injuries due to the ship’s fault. The cases cited are the Peterson v. Pacific S. S. Co., 145 Wash. 582, 261 P. 115, (Admiral Dewey,) 1928 A.M.C. 545; Jackson v. Mitsui, 138 Wash. 124, 244 P. 385, 1926 A.M.C. 850; Seeley v. City of New York, D.C.N.Y., 1927 A.M. C. 1526; Jones v. Atlantic Refining Co., D. C.Pa., 55 F.Supp. 17, 1944 A.M.C. 787. But an examination of these cases shows that the injuries sustained by the respective claimants were much more serious and aggravated than in the instant case as found by the Commissioner. And it may also for comparison be noted that in the case of Heredia v. Davies, 4 Cir., supra, where the injury to the seaman resulted from unseaworthiness of a somewhat similar character, the Court of Appeals, after considering the amount of the award of $400 by the district judge, increased the award, on a cross-appeal, to the amount of $1,000 saying at 12 F.2d at page 501: “It appears that nothing was allowed as compensation for pain and suffering, or for the elemefit of permanent disability in the case. We think that the award should have included compensation for these, as well as compensation for lost time and expenses. The evidence shows that the injury was a very painful one, and that it was necessary that libellant submit to two operations, which," }, { "docid": "8486477", "title": "", "text": "from date of injury to date of trial, which pain will continue indefinitely with some permanent residual impairment. Because of nerve damage, libelant has suffered tingling and distress in the fourth and fifth fingers of the left hand. Also there is nerve involvement in and around the nerve roots located in and around the area of the fourth and fifth lumbar vertebrae, causing pain radiation down the right leg. There is no permanency in this lumbar injury. However, recovery will not be complete for a period of years. Libelant has been under constant heat and massage treatment from the date of his release from the hospital to the date of trial, a period of six months. He has been required to wear a neck brace a substantial portion of that time and has undergone sporadic physio-therapy which could not be continued because of severe pain. Libelant has been totally disabled for nine months at time of trial and will continue to be so disabled for an indefinite period of time, reaching his maximum cure within two to three years from the date of the accident. There will be moderate partial permanent disability, which will necessitate his pursuing some vocation less strenuous than his former longshoring pursuits. Libelant’s earn ings have averaged in excess of $6,000 annually for the preceding six years. This Court finds that libelant is entitled to recover damages as follows: Hospitalization $ 665.35 Medical bills to date 1,152.00 Loss of earnings until time of trial 4,000.00 General damages for pain and suffering and loss of earning power 28,000.00 Total $33,817.35 Johnson Line v. Maloney, 9 Cir., 1957, 243 F.2d 293; Farley v. United States, 9 Cir., 1958, 252 F.2d 85; Imperial Oil v. Drlik, 6 Cir., 1956, 234 F.2d 4; Perin v. Southern Pacific Co., District of Oregon, Civil No. 9355 (jury verdict of $20,000 returned), March 6, 1958; Moe v. Alsop, 189 Or. 59, 216 P.2d 686. Proctor for libelant will submit proposed findings, conclusions and decree in conformity with this opinion. . “The suit at bar remains an action in personam despite the fact that" }, { "docid": "15765403", "title": "", "text": "Moore-McCormack Lines, Inc., 309 F.2d 191 (2d Cir. 1962). Counsel for the appellant shipowner himself told the court that “[t]he nature of the assault changes if it is a wrench or an attack with fists,” and the jury found that the third assistant engineer did use a weapon and that in doing so he demonstrated a viciousness exceeding the conduct tolerated of seamen and hence made the vessel unseaworthy. Appellant also argues that the trial court erred in submitting the negligence claim to the jury. Liability could be based upon either unseaworthiness or negligence; and having found that the jury’s finding of unseaworthiness must stand, it would be unnecessary to reach the issue of negligence except to facilitate further review. We note, therefore, that the jury’s special verdict on the negligence issue seems similarly supportable on the facts and under the instructions. The negligence finding was based on the evidence that the altercation began in the presence of the chief engineer and second assistant engineer; after the third assistant engineer announced that he was “through using [his] hands,” he moved about ten feet away to pick up the wrench; and he advanced toward the appellee again, wrench in hand, shouting that he was going to kill the appellee, in the process passing by the chief engineer and the second assistant engineer, neither of whom tried to stop the assailant or ordered him to cease. The jury could reasonably find that the other officers had the opportunity to react more quickly to quiet the threatening situation or to grab the assailant; under appropriate instructions, the jury found that prudent officers would have so reacted. We cannot say that there was insufficient evidence for the jury thus to find. Appellant’s final argument is that the damages of $25,000 for pain and suffering and $25,000 for lost wages are grossly excessive. Appellant made no motion in the trial court based on this ground, however, precluding its bare assertion in this court. Ryen v. Owens, 144 U.S.App.D.C. 332, 446 F.2d 1333 (1971); Braunstein v. Massachusetts, Bank & Trust Co., 443 F.2d 1281, 1285 (1st" }, { "docid": "8634761", "title": "", "text": "merely reduce the damage award. Cox v. Esso Shipping Co., 5 Cir., 1957, 247 F.2d 629, 636, 1957 A.M.C. 1927. Here the damage award, just as might have been a general verdict of a jury, was in a lump sum for all phases. The only remaining contention requiring some notice is that the amount of the damages awarded was excessive. The Court found that “ * * * the plaintiff has suffered pain, embarrassment, a loss of wages and earning capacity as a direct result of the unseaworthiness of the * * * vessel.” On that he concluded that the total damages “reduced to present value are $21,000.” This accident, the Judge said, “traumatically amputated the second, third and fourth fingers of his left hand.” The element of pain was therefore most significant. For the five hours from the time of the occurrence until King was picked up by Coast Guard for transfer to a hospital ashore, there was no medication or sedation of any kind whatsoever available aboard the vessel. During this time the plaintiff to use the Master’s own words, “was crazy with pain.” If lack of medical supplies aggravated pain, as it undoubtedly did, the Owner can hardly complain of this consequence of patent unseaworthiness. Subsequent to initial discharge from the hospital and after a number of months of experience in which efforts to work continued to cause pain in the surgical stumps, the doctors concluded that the remaining portions of the three fingers should be entirely removed. This was done. Whatever might be the precise facts as to the actual earnings for the three months of August, September and October 1957 — so vigorously attacked by the Owner — there was ample basis for concluding that substantial earnings had been lost down to the date of trial and that earning capacity was markedly reduced as to the future. Lumped together as it was, we could not say that this award for painful, disabling injuries caused by unseaworthiness was clearly erroneous. Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914. Affirmed. . While the matter is not" }, { "docid": "1922590", "title": "", "text": "injuries complained of. Granting that the presence of the slippery substance at that place created a transitory condition of unseaworthiness, it seems a hard doctrine to say that the shipowner, however great his duty of care, should be liable for injuries occasioned thereby even before he, through persons acting on his behalf, had a reasonable opportunity to discover the defect and remove it. At the oral argument we asked appellant’s counsel what the answer would be if a vessel, in all respects initially seaworthy, should be so buffeted in a huge storm that part of its rail, not due to any inherent defect, was washed away (a ship without a rail would certainly be unseaworthy), and if, seconds later, before anyone had had an opportunity to replace the rail, a seaman were washed overboard through this breach in the rail. Appellant’s counsel, recognizing the logic of his position, was obliged to say the shipowner would be liable to the seaman in such a case for an indemnity, over and above the maintenance and cure to which he would be entitled in any event by the general maritime law. Unless and until the Supreme Court tells us that this is indeed the law, we shall continue to believe that it is not so. We associate our selves with the majority opinion in Cookingham v. United States, 3 Cir., 1950, 184 F.2d 213, certiorari denied 1951, 340 U.S. 935, 71 S.Ct. 495, 95 L.Ed. 675. See also Brabazon v. Belships Co., Ltd., 3 Cir., 1953, 202 F.2d 904, 906; Burton v. Greig, D.C.S.D.Ala.1920, 265 F. 418, affirmed 5 Cir., 1921, 271 F. 271; Adamowski v. Gulf Oil Corp., D.C.E.D.Pa.1950, 93 F.Supp. 115, affirmed 3 Cir., 1952, 197 F.2d 523; International Mercantile Marine Co. v. Fleming, supra, 2 Cir., 1907, 151 F. 203, 204. It follows that the district judge committed no error, as alleged, in respect to his charge to the jury on Count II. A judgment will be entered affirming the judgment of the District Court. . In the earlier ease of Sabine Towing Co., Inc. v. Brennan, 5 Cir., 1934," }, { "docid": "7007763", "title": "", "text": "sustain a finding of “potential liability.” It is thus established that the injury to Sannella may have been caused in part, as appellants themselves contend it was, by the unseaworthiness of appellee’s ship. Appellee has shown its potential liability. Having established such potential liability, appellee need establish further only that Yerba Buena Corporation’s negligent conduct contributed to Sannella’s injury. The very depositions relied upon by appellants to establish the seaworthiness of the vessel contain evidence that Yerba Buena Corporation’s employees negligently moved the starboard end of the rolling beam so far ahead of the port end that the starboard end untracked. See Libellant’s Exhibit 16, Deposition of Second Mate Donald C. Uht, of S. S. Fairland, p. 6, 1. 12 to p. 7, 1. 6; and Exhibit 15, Deposition of Jackson Perry Everett, Chief Officer of S. S. Fair-land, p. 36, 1. 21 to p. 37, 1. 19. Such evidence, of course, supports the trial court’s finding (XIII, R. 42) that Yerba Buena Corporation’s negligence contributed to the accident. And it exists in the case irrespective of the assertedly hearsay statement of Fate Thompson. Further, the stevedoring companies introduced no evidence to establish their lack of negligence, although they had the opportunity to do so in the indemnity action. Thus, appellee, in settling with Sannella was not a volunteer; furthermore, it has established positively that it had a potential liability to Sannella and that appellants were liable over under the ex press terms of their contract of indemnity. III. Appellants next claim that the $7,000 settlement was not shown to be reasonable. This assertion is without merit. Sannella suffered a permanent disability, described as a permanent fifteen per cent loss of use of the right leg. In addition Sannella could probably have shown loss of earnings in excess of $5,500 through 1958. See Record, pp. 32-33. IV. In view of the foregoing the last point of controversy should not alter the result. The court held that Yerba Buena is es-topped from claiming that any part of the $7,000 settlement was a voluntary payment by Pan-Atlantic. Such estoppel is based upon" }, { "docid": "2898223", "title": "", "text": "too tight.” The district court found that the driller on the prior shift was negligent in failing to inform Shaw that he had tightened the clutch on the sand-line drum, and that Shaw was negligent in failing to discover that fact by inspecting the operations report, and was further negligent in failing to gradually engage the master clutch in order to determine if the sand-line drum was properly disengaged, and that each of these acts of negligence was a proximate cause of plaintiff’s injuries and damages. Those findings are amply supported by the evidence and are not clearly erroneous. That being true, the court’s further holding that the condition of the clutch mechanism rendered the vessel unseaworthy was not essential to the validity of the decision, and we need not determine whether the vessel was “in navigation” within the use of that term in making the warranty of seaworthiness applicable. See Rogers v. M/V Ralph Bollinger, E.D.La.1968, 279 F.Supp. 92, 94, 95, and cases there cited. The district court found that the plaintiff was not contributorily negligent and that finding is not clearly erroneous. The district court awarded damages in the total amount of $66,000.00 against which it credited $1,610.00 which had been paid plaintiff in compensation. The appellant insists that the court awarded excessive damages and allowed a double recovery. Plaintiff was 39 years of age at the time of the accident. His injuries were to his head, right ear, back and right leg. There was evidence that the injuries to plaintiff’s ear and to his back were permanent. The district court found that plaintiff had lost wages and earnings capacity which will probably extend to the end of his life; that he had suffered physical pain and mental anguish and will probably continue so to suffer to the end of his life. Finally the district court found that: “As a direct and proximate result of his injury plaintiff has suffered a loss of physical capacity, other than his capacity to earn wages, which will in all reasonable medical probability continue to the end of his life. “The present" }, { "docid": "11508403", "title": "", "text": "are not at liberty to imply provisions not expressed. IV. WHETHER APPELLANT IS ENTITLED TO RELIEF, EITHER A NEW TRIAL OR REMITTITUR, ON THE BASIS THAT THE JURY VERDICT WAS EXCESSIVE AS A MATTER OF LAW Plaintiff’s injuries were serious. He suffered severe fractures, first an open, com-minuted, proximal tibial shaft fracture; secondly, an open fracture of the fibular neck; and thirdly, a mid-shaft fibular fracture of the left leg. Thus, there was a fracture of the tibia, the fibular neck and the mid-shaft of the fibula. Several surgical procedures have been carried out at the Routt County Memorial Hospital and later at the Swedish Hospital in Denver. The latter followed flight by helicopter from Steamboat Springs. He was in a full-length cast for some 11 months. During this period he was unable to perform any work. He continued on crutches for some time after the removal of the cast. The special damages as of the time of trial amounted to $21,000. Evidence showed that he suffered a great deal of pain as well. There is permanent disability consisting of loss of motion at the knee, a shortened leg, and a permanent limp, plus permanent scars. Also, he has a permanent arthritic condition. He is restricted in many areas, not only at work but in athletic endeavors. We are also told that the pain continues. The fixing of damages is peculiarly the function of the jury, or of the trial judge if there has been no jury. The appellate court is at a disadvantage in considering whether an award is excessive because the standards are vague, requiring as they do that the verdict be the product of passion, prejudice or improper motive. The fact that it might strike us that the award of $200,000 is high is not sufficient. To find that it was the product of passion or prejudice on the part of the jury, it has to be manifest that the amount awarded was grossly excessive. We are unable to say in this instance that it was. Cf. Wells v. Colorado College, 478 F.2d 158 (10th Cir. 1973)," }, { "docid": "16420135", "title": "", "text": "see such substances might slip on them and fall, injuring himself. Thus, both actual and proximate causation are established. IV. This Court further concludes that plaintiff was not negligent under the circumstances. The evidence, documentary and testimonial, established that he was walking on the grid (nonskid) surface at the time of his fall and that he was walking at a normal gait. The fact that he was not walking slower than normal is insufficient for a finding of negligence, in view of the fact that he was walking on the grid surface and the fact that some light (albeit inadequate to reveal dangerous substances) was available. Finally, there was insufficient evidence to establish that he was not looking where he was going. V. In determining the amount of damages, the Court is guided by the recent opinion of the Court of Appeals for this Circuit in Shellman v. United States Lines, Inc., 528 F.2d 675 (9th Cir. 1975), cert. denied 425 U.S. 936, 96 S.Ct. 1668, 48 L.Ed.2d 177 (1976). In Shellman, the court made it clear that the plaintiff is entitled to recover his full amount of damages from the shipowner regardless of the concurring negligence of the stevedore employer and the shipowner. Id. at 681. Therefore, having found the shipowner negligent, this Court need not determine the negligence, if any, of the stevedore employer. Plaintiff’s total lost wages amount to $4,345. His medical care and treatment have cost $1,005. In addition to wage loss and medical expenses, plaintiff claims damages for past and future pain and suffering, asserting that he permanently injured his .head, neck, back, and left arm and wrist. The Court finds that he is entitled to an award of $5,000 for past pain and suffering; however, there is insufficient evidence of continuing pain or suffering attributable to the original injury. Therefore, the prayer for damages for future pain and suffering is denied. Plaintiff’s damages thus total $10,350. Since plaintiff is not himself negligent, he is entitled to recover this entire amount. He is entitled to a judgment and final decree for damages for personal injuries" }, { "docid": "7217772", "title": "", "text": "trial constitutes a manifest abuse of discretion.\" Ganapolsky v. Park Gardens Development Co., 439 F.2d 844, 846 (1st Cir. 1971). Cantres Roman ($76,350) incurred permanent brain damage and has experienced several epileptic seizures as a result of the accident. Valdivia ($73,250) suffered permanent brain damage, which has impaired his vision and memory. He has also developed a severe psychological reaction. Virella Rivera ($18,000, reduced with consent from $23,000) has continual headaches and permanent visual impairment, but did return to work four months after the accident. None of these awards is so unreasonable as to require a redetermination of damages. The same, however, cannot be said of the award to Falu Benitez ($15,000, reduced with consent from $21,500). Falu Benitez was unconscious for two hours after the accident, and for a period of one to two months thereafter suffered from intermittent headaches, for which he was given pills. After his discharge from outpatient treatment, approximately six weeks after the accident, he returned to work and has felt well ever since. His precise earnings loss does not appear on the record, but likely did not exceed five percent of the judgment. On the basis of these facts, the $15,000 award was far in excess of reasonable compensation for pecuniary losses and a brief period of rather minor pain and suffering, and the amount must be redetermined in a new trial limited to this issue. The defendant objects to the imposition of attorney’s fees pursuant to Puerto Rican Rules of Civil Procedure 44.4(d). To impose attorney’s fees the court must find that a party was obstinate, that he was stubbornly litigious, prolonging the duration of the suit or causing the plaintiff unnecessary inconvenience and expenses. Soto v. Lugo, 76 P.R.R. 416, 419 (1954). Although in most cases attorney’s fees are assessed only against a losing party, the defendant acknowledges that ultimate outcome is not itself determinative of who should pay attorney’s fees. There was no substantial doubt that the vessel was unseaworthy, and defendant was unable even to reach the jury on contributory negligence. Notwithstanding these facts, defendant neither stipulated to unseaworthiness nor" }, { "docid": "7007762", "title": "", "text": "contend that appellee’s liability must be an actual one; the ship owner must establish its own negligence or the unseaworthiness of its vessel. Another view, propounded by appellee and supported by recent and strong authority, is that the indemnitee need show only a potential liability; the indemnitee need not resist settlement to the point of a jury verdict, the amount of which might greatly exceed a reasonable settlement. (Lilleberg v. Pacific Far East Line, Inc., D.C.N.D.Cal.1958, 167 F.Supp. 3, relying upon Chicago Rock Island & Pacific Railway Co. v. United States, 7 Cir., 1955, 220 F.2d 939.) Such potential liability certainly existed in the instant case, where a longshoreman was injured by a roller beam which might have fallen because of improper maintenance. That such improper maintenance may have existed was implicit in the testimony contained in the assertedly inadmissible statement of Fate Thompson. We do not think that the admission of the signed statement, on the issue of potential liability, was reversible error in this judge tried case. The deposition was not necessary to sustain a finding of “potential liability.” It is thus established that the injury to Sannella may have been caused in part, as appellants themselves contend it was, by the unseaworthiness of appellee’s ship. Appellee has shown its potential liability. Having established such potential liability, appellee need establish further only that Yerba Buena Corporation’s negligent conduct contributed to Sannella’s injury. The very depositions relied upon by appellants to establish the seaworthiness of the vessel contain evidence that Yerba Buena Corporation’s employees negligently moved the starboard end of the rolling beam so far ahead of the port end that the starboard end untracked. See Libellant’s Exhibit 16, Deposition of Second Mate Donald C. Uht, of S. S. Fairland, p. 6, 1. 12 to p. 7, 1. 6; and Exhibit 15, Deposition of Jackson Perry Everett, Chief Officer of S. S. Fair-land, p. 36, 1. 21 to p. 37, 1. 19. Such evidence, of course, supports the trial court’s finding (XIII, R. 42) that Yerba Buena Corporation’s negligence contributed to the accident. And it exists in the case" }, { "docid": "11986886", "title": "", "text": "in admiralty in which we have the power finally to dispose of the case, we think the loss of earnings and the pain and suffering of appellant after October, 1947, added to the damages awarded by the district court, amount to a total of $2500. The decree is modified to state that amount, and as so modified stands affirmed. BONE Circuit Judge, (dissenting). On the first appeal we held appellee negligent and remanded the case to the trial court for it to determine the amount of, damages. The case was then argued and submitted to the trial court upon the evidence taken at the original trial. ■ That court, upon considering the evidence and arguments of counsel, fixed the amount of damages at $750.00. This court sees fit to reject that finding and to increase the award, to $2,500.00. In so doing my brethren have accepted in toto Menefee’s uncorroborated and, to my mind, rather improbable story of the extent and duration of his sufferings. They have, contrary to the usual rule on appeal, stated the facts in the light most favorable to appellant and have given no weight whatever to the finding of the court below. The trial court characterized Menefee’s injury as a flesh injury not likely to be seriously disabling for any length of time. Obviously it rejected or discounted most of his testimony concerning the extent and duration of his injury. Clearly it had the right to do so. Menefee, as libelant, was an interested witness in every sense of the term. He stood to gain financially in direct pror portion to the extent to which he could magnify his suffering. That he could easily overemphasize or distort his physical trouble in his own account requires no argument. Testimony of an interested witness, even though uncontradicted, need not be believed. Everett v. Southern Pacific Co., 9 Cir., 181 F.2d 58; Heath v. Helmick, 9 Cir., 173 F.2d 157, 161; Lee Sing Far v. United States, 9 Cir., 94 F. 834. This is true in criminal as well as in civil cases. Reagan v. United States, 157" }, { "docid": "7346585", "title": "", "text": "review in admiralty actions than they have under Rule 52(a) of the Federal Rules of Civil Procedure. McAllister v. United States, 1954, 348 U.S. 19, at page 20, 75 S.Ct. 6, at page 8, 99 L.Ed. 20. Further, the burden is on appellant to show that the findings of the trier of fact are clearly erroneous. Watson v. Button, 9 Cir., 1956, 235 F.2d 235. The findings of the court are presumptively correct and will not be set aside unless clearly erroneous. Rule 52(a), Fed.R.Civ.P. The appellee Joshua Hendy Corporation, despite the judgment against it, is not the appealing party, and hence is the prevailing party. In such a case we are required to take the view of the evidence most favorable to appellee. Stone v. Farnell, 9 Cir., 1956, 239 F.2d 750; Sun Ins. Office, Ltd. v. Gonce, 9 Cir., 1955, 224 F.2d 250; Linscomb v. Goodyear Tire & Rubber Co., 8 Cir., 1952, 199 F.2d 431. The findings on both issues raised by appellant are clearly not erroneous. A mere reading of the facts proved establishes that conclusion. In truth, it is difficult on the issue of negligence to see how any other conclusion than sole negligence on the part of appellant could possibly have been found by any trier of fact. IX In considering the alleged error referred to in the fifth assignment — the status of the Pacific Far East Line — the record clearly shows appellant has no cause of complaint. He was represented below by counsel and a proctor in admiralty, Mr. Selwyn. In the course of the trial the proctor for both appellees, Joshua Hendy Corporation and Pacific Far East Line, stipulated that the appellant was employed by Joshua Hendy Corporation, and proctor for the appellant agreed that such was sufficient. Further, proctor for the appellees stipulated that Joshua Hendy Corporation was the owner and operator of the vessel and the employer of appellant. Under those circumstances it is obvious that if appellant recovered, either on the theory of unseaworthiness or negligence, he would recover against Joshua Hendy Corporation. Both appellant and his" }, { "docid": "12834295", "title": "", "text": "Collins, Sr., there was no error in permitting the younger man to be cross-examined about the averments of that statement, Wig-more on Evidence, Volume IIIA, § 1040, at Page 105. The statement was never introduced in evidence as that of an absent witness; rather, Bruce Collins, Jr. was questioned as to the correctness of statements appearing therein which he, by his signature, after reading the document, had agreed were correct. Interestingly enough, Bruce Collins, Jr. had said in the adopted statement that no accident occurred on the F/V Sylvan Cheramie on April 16, 1970. The jury found to the contrary, so it is quite obvious that the complained of episode furnishes the appellant with scant room for complaint. As to the Jones Act claim, the jury found the owner guilty of no negligence. It found the vessel to have been unseaworthy and that this condition was the proximate cause of appellant’s injury. Additionally, the appellant was found to have been 50% contributorily negligent. The $2,568 maintenance award at $8 per day computes to an allowance of maintenance for 321 days, which turns out to be exactly the period of time between the date of the alleged injury and Blanchard’s admission to the Marine Hospital, where he had a surgical spinal fusion. The evidence was in conflict as to whether this was necessitated by the injury or because of pre-existing conditions. Blanchard duly objected below and complains here of the following charge to the jury: “In this case, if you reach the question of whether the plaintiff is entitled to recover damages, and if you find that he is entitled to such recovery, and that those damages consist, in part, of lost wages, and if you also find that plaintiff is entitled to maintenance, you shall not include such maintenance, as you may find he is entitled to, for the period you awarded lost wages. The law does not allow an injured seaman to recover damages twice for the same loss. If you give him a period of lost wages, you don’t give him maintenance and cure for that time. “You" }, { "docid": "7346586", "title": "", "text": "facts proved establishes that conclusion. In truth, it is difficult on the issue of negligence to see how any other conclusion than sole negligence on the part of appellant could possibly have been found by any trier of fact. IX In considering the alleged error referred to in the fifth assignment — the status of the Pacific Far East Line — the record clearly shows appellant has no cause of complaint. He was represented below by counsel and a proctor in admiralty, Mr. Selwyn. In the course of the trial the proctor for both appellees, Joshua Hendy Corporation and Pacific Far East Line, stipulated that the appellant was employed by Joshua Hendy Corporation, and proctor for the appellant agreed that such was sufficient. Further, proctor for the appellees stipulated that Joshua Hendy Corporation was the owner and operator of the vessel and the employer of appellant. Under those circumstances it is obvious that if appellant recovered, either on the theory of unseaworthiness or negligence, he would recover against Joshua Hendy Corporation. Both appellant and his proctor, Mr. Selwyn, agreed to look to Joshua Hendy Corporation for any judgment. Appellant obtained that judgment. There has been no showing that appellant has been prejudiced in any manner by a failure to find as to the status of Pacific Far East Line. It is well settled that a judgment may not be reversed because of any omission or commission which did not deprive the complaining party of some substantial right. Lancaster v. Collins, 1885, 115 U.S. 222, 227, 6 S.Ct. 33, 29 L.Ed. 373; Anchor Cas. Co. v. McGowan, 5 Cir., 1948, 168 F.2d 323, 325-26. X As to appellant’s sixth assignment of error, the failure to allow interest from September 18th, 1954 (the date of the injury) to June 20, 1958 (the date of the judgment), amounting to $51.20, it is clear that appellant was entitled to it. Maintenance and cure is a right arising ex contractu. Interest runs from the date the maintenance becomes due, until paid, barring special circumstances or “peculiar facts.” Medina v. Erickson, 9 Cir., 1955, 226 F.2d" }, { "docid": "21302984", "title": "", "text": "in the case of Jacobs v. General Accident Fire & Life Assurance Corporation, Ltd., 14 Wis.2d 1, 109 N.W.2d 462 (1961), wherein indemnity is ordinarily granted. The negligence of the United States would render it liable to plaintiff and, therefore, for contribution to joint tortfeasors. It does not serve, under these circumstances, as a defense against a contractual claim, express or implied in fact, for indemnification. The court finds that plaintiff’s damages are as follows: The wage loss, based on plaintiff’s wage at the time of injury of $116.80 per week and a period of total disability of sixty-four weeks, is in the amount of $7,475.20. Special damages by way of medical, hospital, and other care and expense total $2,846.80. The court finds that plaintiff is entitled to the sum of $22,500 for pain, suffering, and disability other than wage loss. This computation takes into consideration that plaintiff has had three prolonged periods of hospitalization and various surgical and orthopedic procedures involving severe pain and discomfort, as to which plaintiff testified with restraint but which may be further corroborated by reference to narcotic medications prescribed for him. Plaintiff was in a cast extending from axilla to finger tips for extended periods of time and has had prolonged physiotherapy treatments. At the time of his injury, plaintiff was twenty-six years old. He was a skilled workman, experienced in his trade. As a result of his injuries, plaintiff has sustained a permanent partial disability. He is unable to fully extend his right arm and has very limited rotation of the right forearm and of flexion of the right wrist. Medically, his disability has been estimated as equal to 35 per cent as compared to loss of the extremity at the elbow joint level. Plaintiff testified that he is presently employed but experiences difficulty and discomfort in weight lifting and in working in tight places incidental to his work. Plaintiff’s total damages of $32,822 must be reduced by the amount of negligence attributable to him, or 15 per cent, in an amount of $4,923.30, resulting in an award of $27,898.70. The foregoing decision" }, { "docid": "7019944", "title": "", "text": "issue of permanency of the plaintiff’s condition only after the medical testimony at trial.” It appears, therefore, that the court applied an incorrect legal standard to the facts of the case. Because appellant cited facts in the record sufficient to raise at least a colorable claim that appellee’s condition was diagnosed as permanent well before the date of the trial, we remand this case to the district court for the limited purpose of determining when appellee’s physicians made an unequivocal diagnosis of the permanency of his disability. Affirmed in part, vacated in part, and remanded. . Although contributory negligence is not available as a complete defense to an unseaworthiness claim, Palermo v. Luckenbach Steamship Co., 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3 (1957), the principle of comparative negligence does apply, see IB Benedict on Admiralty § 25 (6th ed. 1976). Thus, a shipowner’s liability may be offset proportionately to the extent to which the jury determines the plaintiffs own negligence contributed to his injury. Here the jury specifically found that no portion of the appellee’s harm was attributable to his negligence. Appellant has not explicitly challenged the sufficiency of the evidence supporting this finding. We note, however, that we find sufficient evidence to uphold this portion of the jury’s verdict. . For example, appellant requested the trial judge to give the following instruction with regard to unseaworthiness: “If you find that the winch could have been operated by the plaintiff without undue force by using a bar or requesting assistance of another fisherman, you will find that the vessel was seaworthy.” . Because we find the jury’s verdict supported on the ground of unseaworthiness, we need not consider whether the jury properly found for appellee on the Jones Act count. . Although the Supreme Court in Vella v. Ford Motor Co., 421 U.S. 1, 5 n.4, 95 S.Ct. 1381, 1384, n.4, 43 L.Ed.2d 682 (1975), left open the question whether maintenance and cure may be awarded for “palliative medical care to arrest further progress of the condition or to reduce pain”, appellee does not argue that he is" }, { "docid": "22119410", "title": "", "text": "COX, Circuit Judge: Miriam W. Williams sued Best Buy Company, Inc. (“Best Buy”) in state court for personal injuries sustained as a result of a slip and fall. After the case was removed to federal court, the district court granted summary judgment in favor of Best Buy, and Williams appeals. We do not reach the merits of Williams’ arguments on appeal, however, because it is not clear that the district court had subject matter jurisdiction. We remand the case to the district court for factual findings on whether the jurisdictional amount in controversy is satisfied. I.Background Williams filed a complaint in the State Court of Fulton County, Georgia, alleging that she tripped over a curb while entering one of Best Buy’s retail stores and sustained injuries as a result of Best Buy’s negligence. In addition to permanent physical and mental injuries, the complaint alleges that Williams incurred substantial medical expenses, suffered lost wages, and experienced a diminished earning capacity. The complaint then alleges that Williams will continue to experience each of these losses for an ’indefinite time into the future. For these injuries, the complaint seeks general damages, special damages, and punitive damages in unspecified amounts. Best Buy filed a notice of removal pursuant to 28 U.S.C. § 1441, alleging diversity jurisdiction under 28 U.S.C. § 1332. The notice of removal states: “Counsel for Plaintiff and Plaintiff have refused to stipulate that Plaintiffs claims do not exceed and will not exceed the sum of $75,000.00. This suit is for a sum in excess of $75,000.00.” (R.-l at 2.) The notice of removal contains no other factual allegations regarding the amount in controversy, and Best Buy did not submit any evidence concerning the amount in controversy. Williams did not file a motion to remand the case to state court or challenge in any other way the district court’s subject matter jurisdiction. In fact, the joint preliminary planning report proposed by the parties indicated that there was no question regarding the district court’s jurisdiction to hear the case. Following removal, Best Buy moved the district court for summary judgment, and the district" } ]

[ { "docid": "6056539", "title": "", "text": "Interior is not obliged to show some reasonable support for its determination to insist on that requirement in this case. It will not do to present only a “Field of Dreams” justification (“If you build it, they will come.”). Interior’s difficulty in this proceeding in which the key dispute is the appropriate escapement rate for alewives (Interior’s concern for the other fish seems quite strained), is that it relies only on conclusory assertions. It does refer to a management plan put out by the Atlantic States Marine Fisheries Commission which allegedly concludes that the escapement rate for alewives should be between 40 and 75% of an annual run in order to rebuild and increase the run. This plan, unfortunately for Interior, is not in the record. Petitioner, in contrast, presented an expert’s report dealing with the relevant biological data from various river systems including the Union River, which quite pointedly undermines Interior’s opinion or prediction that a 315,000 escapement is justified. Under these circumstances, we think we must conclude that Interior has not provided reasonable support — '“substantial evidence” — for its “finding” and its requirement is not “reasonably related to its goal.” ^ ‡ ‡ ‡ ‡ For the preceding reasons, FERC’s order requiring Bangor to comply with Interior’s fishway prescription is vacated. . The fish trapping facility is used for various fish management purposes. . Escondido concerned § 4(e), 16 U.S.C. § 797(e) (1985), which provides that licenses shall be subject to such conditions that are deemed necessary by the Secretary of the department which supervises a reservation \"for the adequate protection and utilization of [that] reservation.” The parties do not contest (nor could they) FERC’s conclusion in Lynchburg, 39 F.E.R.C. V 61,079, that § 18 imposes a similar duty on the Commission to include fishway prescriptions imposed by the Secretary of Interior in licenses. . The APA’s \"substantial evidence” and \"arbitrary and capricious” standard connotes the same substantive standard of review. The substantial evidence standard is \"only a specific application of [the more general arbitrary and capricious review], separately recited in the APA not to establish a" } ]

[ { "docid": "21858152", "title": "", "text": "because the looped facilities did not benefit all customers. He concluded that, “since there must be ‘equal treatment for customers receiving equal service,’ the T-6 rate should be computed on an incremental basis.” J.A. 2550. Having determined that the incremental method should apply, however, the ALT added sua sponte that the [s]taff is correct, however, in stating that the T-6 rate is unlawful because it does not include any portion of the cost for use of the mainline system. Although the Great Lakes system is not sufficiently “integrated” to require the rolling-in of the cost of the T-6 facilities, it is uncontroverted that the mainline system is used to provide the T-6 service to Mich Wis. Therefore, Mich Wis should bear its share of the costs of the mainline system. Upon a review of the record ... it is held that substantial evidence of record supports the conclusion that the T-6 rate should continue to be calculated on an incremental basis, and further, that the mainline fixed costs should be allocated among all customers. J.A. 2550. Although we agree that substantial record evidence supports the continued use of the incremental basis, we find absolutely no record evidence, not even a \"mere scintilla,” to support the use of the rolled-in method as well. Since our review is based on the substantial evidence standard, and since we find that standard not to be satisfied here, we deem it unnecessary to discuss the precedents cited by the parties. Our review is based on the record in this case. If there were evidence in the record supporting the concurrent adoption of the two methods of cost allocation, we would examine past judicial and Commission decisions to determine whether the statute permits such an approach. We need not reach that question here because we lack the factual predicate. Accordingly, we remand the case to the Commission. On remand, FERC should either supplement the record before concluding that the combined methods are appropriate, or should elect one of the methods advocated by the parties on the basis of the present record. V. The T-8 and T-10" }, { "docid": "21645740", "title": "", "text": "barrier to upstream fish movement, the Department stated that “those fish are forever lost to the [above-dam] lake fishery.” In addition, the Commission’s environmental assessment of the project esti mated turbine mortality for small fish at four to six percent, and for large fish, such as walleye, at ten to twenty percent. The Commission concluded that “[t]he total number [of] fish entrained may be greater than at most sites because of the greater hydraulic capacity” of the project powerhouse. WP&L nonetheless maintains that the record permits no conclusions about entrainment and turbine mortality at the project because only one study, which did not directly evaluate entrainment, was done at the project. The record shows that further studies at the project were not completed because WP&L rescinded its proposal to do so, despite its consultant’s acknowledgment that such studies were “justified.” The applicable standard of review does not demand perfect information, but only requires substantial evidence, see 16 U.S.C. § 825l(b), which may include findings made in light of uncertainty. See Department of the Interior, 952 F.2d at 546. Under the circumstances, the Secretary reasonably relied on data from facilities similar to the project in concluding that entrainment was harming fishery resources. WP&L additionally contends that record evidence fails to show that the Secretary’s downstream passage prescriptions are technically feasible and effective. The Commission’s environmental assessment cast doubt on certain entrainment protective devices, such as a mesh net. However, the Secretary could reasonably rely on the more favorable assessment contained in WP&L’s application as well as recent research at similar facilities. Given conflicting views, the Secretary had “discretion to rely on the reasonable opinions of [her] own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861-62, 104 L.Ed.2d 377 (1989). For instance, the Secretary reasonably credited WP&L’s license application, which, based on its consultant’s detailed research and analysis, stated that “WP&L believes the net would protect a large percentage of fish now susceptible to entrainment.” The Secretary also noted a" }, { "docid": "8427435", "title": "", "text": "marks and brackets omitted)). We therefore decline to read the word \"only” into § 543(b)(2)(C)(v). . Petitioners also argue that the Pasadena Order is contraiy to another of the § 543(b)(2)(C) factors, which directs the Commission to \"take into account ... the revenues (if any) received by a cable operator from advertising from programming that is carried as part of the basic service tier or from other consideration obtained in connection with the basic service tier.” 47 U.S.C. § 543(b)(2)(C)(iv). For the reasons already stated, this argument fails. . Relying on § 542(c)'s statement that operators may identify the amount passed through \"consistent with the regulations prescribed by the Commission pursuant to section 543,” petitioners urge us to read § 542(c)(1) and § 543(b)(2)(C)(v) together. For the reasons discussed above, however, these provisions do not, separately or together, evidence an unambiguous congressional intent to prohibit pass through of non-subscription revenue to subscribers. . Our use of a similar example in City of Dallas was intended only to demonstrate that the amount passed through to subscribers could be easily calculated. 118 F.3d at 397 (rejecting argument that including amounts collected as franchise fees in operators' gross revenue would result in \"a never-ending series of calculations”). City of Dallas held that, for purposes of calculating five percent of a cable operator's gross revenue, gross revenue included money collected from subscribers for payment of the franchise fee. Id. at 398-99. Despite petitioners' repeated claims to the contrary, the Pasadena Order does not run afoul of City of Dallas, which did not consider the question presently before us. . Petitioners also argue that, even if the full franchise fee may be passed through to subscribers, § 542(c)(1) nevertheless precludes operators from identifying the portion of the fee not attributable to subscription revenue. The text of § 542(c)(1) does not compel this result, and the Commission's determination that identification of the entire amount is consistent with the political accountability purpose of § 542(c) was not arbitrary and capricious. See Pasadena Order ¶ 23. . Many of the materials cited by petitioners address the allocation of" }, { "docid": "6210790", "title": "", "text": "their high-priority end-users against the harmful effects of capacity curtailments than supply shortages. For example, according to the FERC, transportation customers can guard against capacity constraints by, among other things, utilizing a diverse portfolio of pipeline suppliers, maintaining backup supplies in storage, and, finally, using private contracts to buy capacity from pipeline customers who serve less essential end-users. See Order No. 636-A, III FERC Statutes & Regulations, Regulations Preambles, ¶ 30,950, at 30,590 (1992). Thus, even if petitioners are right that Congress was animated by a general desire to protect high-priority consumers against the effects of all kinds of curtailments, the FERC could reasonably conclude that with capacity constraints, unlike supply shortages, transportation customers can generally “fend for themselves,” so as to protect their high-priority end-users without relying on end-use-based curtailment plans. B. The NGA Claim The petitioners also allege that the FERC violated § 4 and § 7(e) of the Natural Gas Act, 15 U.S.C. §§ 717c & 717f(e), by not modifying the Global Settlement to ensure that their high-priority end-use customers receive a continuous supply of natural gas. It is well-established — and the FERC does not contest — that § 4, which requires that rates be “just and reasonable,” and § 7(e), which requires that all natural gas transactions meet the test of “present or future public convenience and necessity,” oblige the Commission to protect the ultimate consumers of gas. See Atlantic Refining Co. v. Public Service Commission, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959). As the FERC’s counsel acknowledged at oral argument, implicit in this consumer protection mandate is a duty to assure that consumers, especially high-priority consumers, have continuous access to needed supplies of natural gas. See Sunray Mid-Continent Oil Co. v. FPC, 239 F.2d 97, 101 (10th Cir.1956) (“No single factor in the Commission’s duty to protect the public can be more important to the public than the continuity of service furnished.”), rev’d on other grounds, 353 U.S. 944, 77 S.Ct. 792, 1 L.Ed.2d 794 (1957); cf. Tejas Power Corp. v. FERC, 908 F.2d 998, 1003 (D.C.Cir.1990) (“[T]he public" }, { "docid": "22229517", "title": "", "text": "rehearing insofar as it precluded consideration of the settlement proposal. . Ibid. (1938), as amended, 15 U.S.O.A. § 717r (b). . Michigan Consolidated, its two affiliates in the American Natural System (Michigan Wisconsin and American Louisiana), three customers (two present and one potential) of Michigan Wisconsin, and three governmental units challenge the abandonment orders. In addition, the Wisconsin Public Service Corporation appeals, in No. 15093, from an order of the Commission which denied it leave to intervene in the abandonment case because its petition was filed more than thirty days after the original abandonment order. Michigan Consolidated also appeals, in No. 15144, from the Commission’s denial of a rehearing of its February 13 order which denied rehearing of the abandonment order. Michigan Consolidated apparently-feared that its exclusion from the further proceedings which the Commission ordered to determine a plan of allocation for the abandonment gas might be construed as a substantive order, and it sought rehearing in order to preserve its right to judicial review under § 19(b) of the Natural Gas Act, 52 Stat. 831 Panhandle, eleven of its customers, three state commissions and a municipality all intervened in support of the. Commission. . 52 Stat. 824 (1938), 15 U.S.C.A. § 717f (b). . See Atlantic Refining Co. v. Public Service Comm., 1959, 360 U.S. 378, 391, 79 S.Ct. 1246, 3 L.Ed.2d 1312. . 20 F.P.C. 851, 854, quoting from Panhandle Eastern Pipe Line Co., 11 F.P.C. 167, 171-72 (1952). Emphasis supplied. . 20 P.P.O. at 854. . The Commission found that American Natural’s annual requirements utilize 262,278,160 Mcf and its latest annual capacity to be 260,595,197 Mcf. “This,” said the Commission, “is close enough * * * so that the difference can be made up by [added compression].” Id. at 856. . Id. at 857. Heating saturation is de: fined at note 38 infra. . 21 P.P.C. at 221. . 21 P.P.C. at 220. . 21 P.P.O. at 221. . In its parting shot, the Commission summed up thus: “In applying the standard of the Act all of the considerations referred to in this order and in our" }, { "docid": "13340556", "title": "", "text": "contract rate is just and reasonable. We will, absent a showing of special circumstance, accept as conclusive the cost findings embodied in our area rate decisions, as such may be supplemented from time to time by appropriate Commission order.” Thus, the Commission’s review will include consideration of costs; and since all applications are subject to notice, intervention and hearings, all parties are free, upon a “showing of special circumstances” to challenge the cost findings embodied in area rate decisions. In Order No. 455-A, clarifying Order No. 455, the Commission pointed out that no rates were prescribed by Order No. 455 and asserted that “individual hearings will be held on each certificate application so filed at which time any interested party, including petitioners, may intervene and present evidence.” Responding to the charge that by issuing Order No. 455 “we have deregulated natural gas producers” the Commission said: Contrary to the “Concerned Congressmen’s” contention, this procedure is not without standards. Certification will be subject to the standards of “just and reasonable” in Section 4 and “present and future public convenience and necessity” of Section 7. We will apply those standards of the Natural Gas Act as interpreted by the courts. In other words, only after a hearing, and Commission findings, subject to Section [sic] 4 and 7, will such a certificate be granted. This is not decontrol. ****** Section 2.75 1 specifically states that the rates, charges and services to be certificated under the optional procedure shall be just and reasonable and required by the present and future public convenience and necessity. In other words, such certification shall conform to the standards of Sections 4 and 7 of the Natural Gas Act. We agree with the Commission that when considered and construed in the light of these positive statements the Commission’s Rule does not abandon the standards of Section 4 of the Act, and we have previously noted the Commission’s recognition that Section 5(a) of the Act will remain applicable to all rates. Atlantic Refining Co. v. Public Service Commission, (CATCO), 360 U.S. 378, 391, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959);" }, { "docid": "7917525", "title": "", "text": "in any § 7 proceeding to open their markets to a second supplier to show that, in view of the impact on Columbia and its customers, this new competition would not be in the public interest. There is discretion in § 7 proceedings to issue certificates with conditions, and where the public interest requires it with price conditions. Atlantic Ref. Co. v. Public Serv. Comm’n (CATCO case), 360 U.S. 378, 391, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). In its original opinion, 28 FPC 860, set aside in Lynchburg, the Commission concluded that the public interest was better served by use of minimum commodity rates to protect the old market rather than by enlarging and delaying certification proceedings with detailed projections as to possibility of harm from the new supply. . Whether other sales may properly be viewed as offsetting is itself a difficult question requiring application of regulatory expertise. Two of the considerations are set forth in n. 6 supra,. The Commission held, however, that the evidence put forward by Columbia did not permit an inference that Columbia’s increased sales were not properly off-setting. . Several judicial decisions since Lynch-burg have held that offsetting sales are a relevant consideration. see Cincinnati Gas & Elec. Co. v. FPC, 389 F.2d 272 (6th Cir. 1968); Atlantic Seaboard Corp. v. FPC, 397 F.2d 753 (4th Cir., 1968). . SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). . City of Chicago v. FPC, 124 U.S.App.D.C. 13, 385 F.2d 629 (1967); Pinellas v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956). . Whether this result will follow depends in part on whether the pipeline supplying the particular Columbia Company has idle capacity so that the higher purchases could have been supplied without the construction of new facilities, which would add to the fixed costs which must be covered. . See, e.g., United Shoe Mach. Corp. v. Hanover Shoe, Inc., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), holding that a person paying higher prices because" }, { "docid": "22170542", "title": "", "text": "was consistent with the public interest. Citizens asserted in its amended petition to intervene that the Michigan Public Service Commission had failed effectively to regulate electric utilities due to its “inadequate budget and inadequate staff.” While unfortunate, if true, the alleged failure would seem to be remediable elsewhere, and in any event it does not affect the crucial determination by the FPC. Moreover, it may be assumed, at least arguendo, that a collapse in state regulatory controls that is either documented or notorious would properly be taken into account by a federal agency in determining what is required in the public interest. Compare Atlantic Refining Co. v. Public Service Comm’n of State of New York, 360 U.S. 378, 388-394, 76 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). But it cannot seriously be supposed that a federal agency is required to devote its staff and an evidentiary hearing to an analysis of the effectiveness of a state commission merely because some citizens recite, in terms that are general and eon-clusory, an objection to a city’s willingness to accept the same safeguards that the state law extends generally to consumers. 6. The Alleged Effect on Lake Al-legan: On this issue, as on point 3, it seems that the FPC has not ignored the pleas of Citizens, but has taken effective action in the circumstances. The FPC stated that both Citizens and Consumers were focusing on the wrong issue over whether on not Lake Allegan is presently suited for recreational use, for the important issue is “how can the development of the recreational potential of the Lake be best promoted and effectuated.” The FPC then conditioned its approval upon Consumers’ preparing a satisfactory recreational use plan. It said that petitioners need not fear improvident ultimate disposition of the project since the FPC must approve any future transfer of the license, and that under the Act and regulations, the FPC could proscribe the abandonment or sale of the licensed project without the Commission’s permission. Concerning the desire of Citizens for a re-purchase agreement, the Commission felt that this would give control over disposition of project" }, { "docid": "21694029", "title": "", "text": "Alfred L. Snapp & Son, supra, might well do so. But at least where the state meets those traditional criteria; where the citizen interests represented' are concrete interests which the citizens would have standing to protect in the courts themselves; and where the subject of challenge is Executive compliance with statutory requirements in a field where the federal government and the states have long shared regulatory responsibility; we have no doubt that congressional elimination of the rule of Massachusetts v. Mellon is effective. Our holding today is in accord with our dictum in Pennsylvania v. Kleppe, 533 F.2d 668, 678 n. 55 (D.C.Cir.1976), that natural gas cases “raise no question of parens patriae standing, since the Natural Gas Act itself provides for state standing to challenge FPC orders concerning natural gas.” While we are aware of no case allowing state standing with specific discussion of the issue, we are confirmed in our view by the fact that a number of suits against FERC and its predecessor brought by states apparently in a parens patriae capacity have been entertained. See, e.g., Wisconsin v. FPC, 373 U.S. 294, 83 S.Ct. 1266, 10 L.Ed.2d 357 (1963); Public Service Commission of New York v. FPC, 257 F.2d 717, 720 (3d Cir.1958), aff'd, Atlantic Refining Co. v. Public Service Commission of New York, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959); Office of Consumers’ Counsel v. FERC, 655 F.2d 1132 (D.C.Cir.1980). For the reasons stated, we conclude that No. 85-1029 is properly before us. We grant the subject petitions to intervene in Nos. 85-1029 and 85-1086 with four exceptions, as noted in the accompanying orders, and grant the motion to consolidate the two cases. All further proceedings on these appeals are stayed pending our disposition of No. 84-1019. So ordered. . The sentence of this subsection that makes application for rehearing a condition of entitlement to judicial review provides only that “[n]o proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon” (emphasis added). Since" }, { "docid": "22229518", "title": "", "text": "831 Panhandle, eleven of its customers, three state commissions and a municipality all intervened in support of the. Commission. . 52 Stat. 824 (1938), 15 U.S.C.A. § 717f (b). . See Atlantic Refining Co. v. Public Service Comm., 1959, 360 U.S. 378, 391, 79 S.Ct. 1246, 3 L.Ed.2d 1312. . 20 F.P.C. 851, 854, quoting from Panhandle Eastern Pipe Line Co., 11 F.P.C. 167, 171-72 (1952). Emphasis supplied. . 20 P.P.O. at 854. . The Commission found that American Natural’s annual requirements utilize 262,278,160 Mcf and its latest annual capacity to be 260,595,197 Mcf. “This,” said the Commission, “is close enough * * * so that the difference can be made up by [added compression].” Id. at 856. . Id. at 857. Heating saturation is de: fined at note 38 infra. . 21 P.P.C. at 221. . 21 P.P.C. at 220. . 21 P.P.O. at 221. . In its parting shot, the Commission summed up thus: “In applying the standard of the Act all of the considerations referred to in this order and in our prior order were weighed. Certainly the needs of Panhandle’s customers for the gas coupled with the general considerations expressed in our previous order and again referred to below with respect to the relations between the two systems and their place in the natural gas industry show that the public convenience and necessity ‘permit’ such abandonment.” [21 P.P.C. at 222] . Despite some language to the contrary, we find that the Commission actually relied upon its finding that the gas could be used to greater advantage on the Panhandle system. Hence it is unnecessary for us to consider petitioners’ argument that the Commission misconstrued the statute by suggesting that the public interest would “permit” abandonment if the needs of Panhandle’s consumers were only as great as the needs of Michigan Consolidated’s. . 21 F.P.C. at 227. . We do not decide whether these determinations are also sufficient to support the allocation of American Louisiana’s uncommitted capacity to Michigan Consolidated. Petitioners have not raised the applicability of §§ 7(c) and (e), and we do not reach the" }, { "docid": "7917524", "title": "", "text": ". FPC v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 88 L.Ed. 333 (1944). It is settled that antitrust considerations are relevant, and must be considered by the Commission in the performance of its duties under the Natural Gas Act, People of State of California v. FPC, 369 U.S. 482, 484-485, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); City of Pittsburgh v. FPC, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956); Northern Natural Gas Co. v. FPC, 130 U.S.App.D.C. _, 399 F.2d 953 (1968). For one example of the benefits to consumers of some competition, even in a generally regulated area, see United States v. El Paso Natural Gas Co., 376 U.S. 651, 655, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), where the Court noted that El Paso reduced its prices some 25% when faced with the prospect of competition. . All new facilities must be certified by the Commission under § 7 of the Act, 15 U.S.C. § 717f, to be in the public interest. Thus, the Columbia companies may intervene in any § 7 proceeding to open their markets to a second supplier to show that, in view of the impact on Columbia and its customers, this new competition would not be in the public interest. There is discretion in § 7 proceedings to issue certificates with conditions, and where the public interest requires it with price conditions. Atlantic Ref. Co. v. Public Serv. Comm’n (CATCO case), 360 U.S. 378, 391, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). In its original opinion, 28 FPC 860, set aside in Lynchburg, the Commission concluded that the public interest was better served by use of minimum commodity rates to protect the old market rather than by enlarging and delaying certification proceedings with detailed projections as to possibility of harm from the new supply. . Whether other sales may properly be viewed as offsetting is itself a difficult question requiring application of regulatory expertise. Two of the considerations are set forth in n. 6 supra,. The Commission held, however, that the evidence put forward by Columbia did not permit" }, { "docid": "23496612", "title": "", "text": "THORNBERRY, Circuit Judge: I. Introduction In this ease we review Opinions 647 and 647-A, in which the Federal Power Commission approved a final curtailment plan for United Gas Pipe Line Company (United). In essence this appeal is a bitter economic struggle in which each party seeks to minimize the losses dealt it by the now famous natural gas shortage. FPC contends the curtailment plan represents its best possible effort under trying circumstances; the intervenors compliment FPC’s wisdom and defend its plan; and the petitioners cry “foul”, raising a host of reasons why FPC should issue a plan more favorable to them. They say, inter alia, that FPC has no authority to curtail on an end-use basis; that FPC has no authority to order a new curtailment plan without finding the old one inadequate; that curtailment plans must be accompanied by environmental impact statements; that FPC improperly attempted to exonerate United from all liability flowing from its gas shortage; that FPC’s curtailment plan is not supported by substantial evidence; and that the plan is not ripe for review. We find merit in some of these contentions and therefore must remand. Under pressure to survive the worsening gas shortage, the parties in this case ironically seek to find shelter in federal legislation designed not for corporate giants but for the consumer and average citizen. Congress intended the FPC, acting under the Natural Gas Act, to “protect consumers from exploitation at the hands of natural gas companies,” FPC v. Hope Natural Gas Co., 1944, 320 U.S. 591, 611, 64 S.Ct. 281, 291, 88 L.Ed. 333, and ensure that the public receives just and reasonable gas prices. Atlantic Refining Co. v. Public Service Commission, 1959, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312. See Comment, FPC Natural Gas Allocation: Curtailment in Context, 50 Texas L.Rev. 1370 (1972). In this case, however, by seeking FPC approval of its curtailment plans United is using the Commission as a shield against potentially massive contractual liability growing out of its inability to meet contractual commitments. Not to be outdone, its jilted corporate customers seek to" }, { "docid": "15189182", "title": "", "text": "to charge identical rates even though its costs to seiwe each group of customers markedly differed, resulting in significant disparities in rates of return. Id. at 27-28. No such circumstances are present here. To the extent petitioners contend that the Commission misapplied its precedents in approving the amended System Agreement, their contention is meritless. They make no response in their Reply Brief to the Commission’s statements in its brief that the precedents have little bearing on the issues. Thus, the Commission points out that its reference in Opinion No. 385-A, 67 FERC at 61,587, to AEP was for the proposition that whether a system-wide rate is unduly discriminatory turns on whether the rate fairly allocates costs among subsidiaries, not whether the rate properly reflects the share of services contributed. The Commission further points out that in Mississippi Indus., 808 F.2d at 1565-66, the court rejected the proposition urged by petitioners that AEP’s approval of a cost allocation supports mandating such an allocation here. Any suggestion by petitioners that the Commission’s quotation from Utah Power & Light Co., 45 FERC ¶ 61,095, 1988 WL 391163 (1988), indicates confusion about whether it was resolving or deferring the § 205 issue for the amended System Agreement, see Opinion No. 385, 65 FERC at 62,474-75, is belied by the Commission’s findings on the § 205 issue. E.g., id. at 62,464. Finally, as the Commission notes, Northeast Utils. Serv. Co., 50 FERC ¶ 61,266,1990 WL 316613 (1990), suspending a proposed rate, provides no guidance here. As evidence of undue discrimination, petitioners point to their lost opportunity to benefit from open market sales of excess capacity, instead of being obligated under the System Agreement to afford Gulf States access to such capacity through the system pool at below-market rates. They also point to the loss of their ability to take advantage of depreciation avoidance, whereby, for example, Arkansas Electric Energy Consumers asserts that it has fully depreciated generating plants, the front-end costs of which have been borne by the EOCs’ ratepayers. Yet these circumstances do not demonstrate unduly disparate treatment between Gulf States and the Entergy" }, { "docid": "18169384", "title": "", "text": "in the light of the risk in exploring for and producing gas the Commission concluded that [A] return on common equity of approximately 15 percent would be fully justified, and would reflect past histo ry for companies confined to the producing function. We find a rate of return of approximately 15 percent proper to be used in these proceedings. (R. 2670.) Continental argues that the Commission improperly determined initial rate levels solely on the basis of cost comments, and that in any event the rates established were inadequate to promote necessary and future gas supplies. We need not labor the point that the Commission has wide discretion in deciding what factors to consider in certifying initial rates as required by public convenience and necessity, FPC v. Sunray DX Oil Co., 391 U.S. 9, 88 S.Ct. 1526, 20 L.Ed.2d 388 (1968); United Gas v. Callery Properties, 382 U.S. 223, 86 S.Ct. 360, 15 L.Ed.2d 284 (1965), rehearing denied, 382 U.S. 1001, 86 S.Ct. 526, 15 L.Ed.2d 491 (1966); Atlantic Refining Co. v. Public Service Commission of N.Y. (CATCO), 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959), and cost is one factor which may be considered, Permian Basin Area Rate Cases, 390 U.S. 747, 815, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). As we have indicated moreover the record discloses that the Commission did consider factors other than cost comments; contrary to the contention of Continental evidence concerning intrastate sales and supply and demand was considered. We must also decline Continental’s invitation to hold that the rates established were too low. There is no showing that the rates are outside “the ‘zone of reasonableness’ within which the courts may not set aside rates adopted by the Commission.” FPC v. Sunray DX Oil Co., 391 U.S. 9, 29, 88 S.Ct. 1526, 1537, 20 L.Ed.2d 388 (1968). We think the Commission’s orders sufficiently articulated and explained the reasoning and factual basis of the conclusions reached; and considering the record as a whole we find that the orders were supported by substantial evidence. The orders of the Commission are Affirmed. . Midland, Texas" }, { "docid": "14859040", "title": "", "text": "all fixed cost recovery from present discount sales to its non-discount customers. In Panhandle Eastern Pipe Line Co. v. FERC, 613 F.2d 1120 (D.C.Cir.1979), cert. denied, 449 U.S. 889, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980), we reviewed the Commission’s attachment of a similar condition to a pipeline’s application for a Section 7 certificate authorizing it to use idle system capacity to transport another company’s natural gas. Because the pipeline’s existing gas rates had been set at levels deemed sufficient to compensate the pipeline for its costs, the Commission believed that any revenues received from the transportation service would constitute a double recovery. The Commission therefore attached to its authorization a condition requiring the pipeline to reduce the rates of its gas customers by crediting all transportation revenues to costs borne by them. In passing upon the validity of this condition, we acknowledged that the Commission is empowered by the NGA, § 7(e), 15 U.S.C. § 717f(e), to “attach to the issuance of the certificate ... such reasonable terms and conditions as the public convenience and necessity may require,” including a rate ceiling for the new service, see, e.g., Atlantic Refining Co. v. Public Service Com mission, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). We concluded, however, that there was a fundamental distinction between imposing conditions on the terms of the proposed service itself and imposing conditions on the terms of services not directly before the Commission in the Section 7 certification proceeding. To permit the latter, we felt, would expand Section 7 beyond its intended purpose, into a means of circumventing the protections afforded to pipelines under the NGA’s normal rate-adjustment provisions, Sections 4 and 5, 15 U.S.C. §§ 717c, 717d. Panhandle, 613 F.2d at 1129-33. Accordingly, we held that “[t]he Commission may not ... order adjustments in previously approved rates for services not before it in the certificate proceeding.” Id. at 1133. In its order denying rehearing and in this appeal, the Commission distinguished Panhandle on the basis that that case involved the flow-through of revenue between distinct classes of customers — transportation customers and" }, { "docid": "3397456", "title": "", "text": "hearing ... shall find that any rate ... is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate ... and shall fix the same by order.” Section 5 rate adjustments may be prospective only, and the Commission may not order rate increases unless the company has filed a new rate schedule. 613 F.2d at 1127-28 (citations omitted). In Panhandle, this court held that the Commission exceeded its conditioning authority in imposing a revenue-crediting condition similar to that in the instant case. The panel opinion in this case summarized the Panhandle decision as follows: In [.Panhandle ], we reviewed the Commission’s attachment of a similar condition to a pipeline’s application for a Section 7 certificate authorizing it to use idle system capacity to transport another company’s natural gas. Because the pipeline’s existing gas rates had been set at levels deemed sufficient to compensate the pipeline for its costs, the Commission believed that any revenues received from the transportation service would constitute a double recovery. The Commission therefore attached to its authorization a condition requiring the pipeline to reduce the rates of its gas customers by crediting all transportation revenues to costs borne by them. In passing upon the validity of this condition, we acknowledged that the Commission is empowered by the NGA, § 7(e), 15 U.S.C. § 717f(e), to “attach to the issuance of the certificate ... such reasonable terms and conditions as the public convenience and necessity may require,” including a rate ceiling for the new service, see, e.g., Atlantic Refining Co. v. Public Service Commission, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). We concluded, however, that there was a fundamental distinction between imposing conditions on the terms of the proposed service itself and imposing conditions on the terms of services not directly before the Commission in the Section 7 certification proceeding. To permit the latter, we felt, would expand Section 7 beyond its intended purpose, into a means of circumventing the protections afforded to pipelines under the NGA’s normal rate-adjustment provisions, Sections 4 and 5, 15 U.S.C. §§ 717c, 717d." }, { "docid": "2039618", "title": "", "text": "to prove by a preponderance of the evidence that its minimum bills were justified. Rather, it was a burden of production under which Transwestern was obligated merely to proffer justifications for its minimum bills. The ultimate burden of proving competitive harm remained on the parties challenging Transwestern’s minimum bills and seeking their elimination. Before the Commission, Transwestern did not attempt to justify its minimum bills on the ground that they protected full-requirements customers from cost-shifting due to fixed costs prudently incurred or even costs associated with take-or-pay payments. Yet, the Commission thoroughly considered each of those justifications, as well as Transwestern’s assertions that it should recover all its fixed-costs through the guaranteed mechanism of a minimum bill. The Commission found that Transwestern’s minimum bills were not justified, in light of the competitive harm. There was no impermissible shift of the burden of proof to Transwestern. H. Statutory Authority Transwestern challenges the Commission’s statutory authority to impose the remedy of total elimination of minimum bills on the basis that abrogation of its minimum bills constitutes an unlawful revocation or modification of its certificate of public convenience and necessity issued under § 7 of the NGA. The D.C. Circuit rejected this argument in Wisconsin Gas Co., 770 F.2d at 1153 n. 9, and we reject it here. Section 7 does not guarantee that the original conditions upon which the certificate was authorized will never change. See Atlantic Refining Co. v. Public Services Commission, 360 U.S. 378, 389, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959). Section 5 of the NGA expressly empowers the Commission to change rates or practices, such as the fixed-cost minimum bills at issue here, if such provisions become unjust and unreasonable. While elimination of the minimum bills alters rates, it does not affect Transwestern’s authorized service under its certificate. III. Summary We uphold the Commission’s orders which eliminated Transwestern’s minimum bills and which terminated the Commission’s investigation into the minimum bill practices of the other interstate pipelines supplying California. The Commission’s conclusion that Transwestem’s minimum bills unreasonably restrained trade was based on substantial evidence. It was not necessary" }, { "docid": "21863003", "title": "", "text": "the savings from competitive pricing forgone as a consequence of Paragraph J. The Commission rejected this contention primarily on the ground that there was “clear, quantifiable record evidence of [fixed cost] benefits” to ineligible customers, while there had been no “attempt to quantify” gas cost savings. Final Columbia SMP Order, supra, 26 F.E.R.C. (CCH) at p. 61,088. Even unquantified factors, however, cannot be dismissed without further inquiry where their impact is both evident and massively significant. That is certainly the case here, given the fact that both marginal and fixed transportation costs (the latter of which will be more broadly dispersed by the SMP) account for only about 15 percent of wholesale gas rates, while gas costs (which would be reduced by competition significantly enough, evidently, to entice fuel switchable customers back into the system) account for about 85 percent. The Department of Energy has concluded that the reduction of fixed cost charges “is insignificant when compared to savings that could have been realized if all constraints on SMP’s had been eliminated.” U.S. Dep’t of Energy, Increasing Competition in the Natural Gas Market: Second Report Required by Section 123 of the Natural Gas Policy Act of 1978, at 85 (1985). It is clear to us that further consideration of this factor was needed if the Commission was to exercise its powers, as the Supreme Court has required, so “as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges.” Atlantic Refining Co. v. Public Service Commission, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959). Competition may well be an effective way to achieve that, but the Commission has not explained why competition restricted in the fashion it has approved would do so merely because of its effect upon costs shared by those to whom the competition itself is denied. B. Enhancement of Pipeline Competition On this appeal, the rationale the Commission advances most strenuously in defense of Paragraph J is that competition between pipelines for one another’s “core” or captive market would not necessarily be in the public interest. The" }, { "docid": "347931", "title": "", "text": "The conclusion that the ICC did not err in relying on the Conrail data does not, however, completely put to rest the challenge to its finding that rate regulation is not needed to prevent abuse of market power, since the Commission must consider all relevant factors in the comments it receives. Petitioners submitted evidence demonstrating that four commodity groups — auto parts, paper and forest products, grain, and metals — included submarkets for transportation within which railroads had high market shares and in one case were earning sufficiently high r/vc to subject them to regulation. For these commodity groups the Conrail study would not be enough to support the Commission’s conclusion on market abuse since its aggregated data cannot refute this more specific evidence submitted by petitioners. In every one of these potentially problematic groups, however, the ICC considered record evidence independent of the Conrail study and concluded that railroads had no market dominance or otherwise were not in a position to abuse market power within any commodity group. The petitioners argue that the Commission ignored evidence they submitted tending to show market dominance in certain submarkets. See Joint Brief for Petitioners at 75-82. While we agree that there is some evidence in the record tending to support their contentions about market power as to certain commodities, we do not find it, on review, compelling enough to render the Commission decision arbitrary and capricious. It is not our function to second-guess the ICC on factual matters. See Allegheny-Ludlum Steel, 406 U.S. at 749, 92 S.Ct. at 1946 (reviewing court is not to weigh the evidence before the Commission). The ICC, in its decision, drew on evidence of such factors as transportation alternatives, trends in the transportation of these commodities, shipper market power, etc., from which it was reasonable to conclude that railroads either do not dominate these submarkets or could not abuse any market power they did have. See Boxcars I, 367 I.C.C. at 436-40. Thus, despite the lack of the Conrail study’s probativeness for the four potentially problematic groups, the ICC had ample record evidence supporting its conclusions as" }, { "docid": "13340557", "title": "", "text": "future public convenience and necessity” of Section 7. We will apply those standards of the Natural Gas Act as interpreted by the courts. In other words, only after a hearing, and Commission findings, subject to Section [sic] 4 and 7, will such a certificate be granted. This is not decontrol. ****** Section 2.75 1 specifically states that the rates, charges and services to be certificated under the optional procedure shall be just and reasonable and required by the present and future public convenience and necessity. In other words, such certification shall conform to the standards of Sections 4 and 7 of the Natural Gas Act. We agree with the Commission that when considered and construed in the light of these positive statements the Commission’s Rule does not abandon the standards of Section 4 of the Act, and we have previously noted the Commission’s recognition that Section 5(a) of the Act will remain applicable to all rates. Atlantic Refining Co. v. Public Service Commission, (CATCO), 360 U.S. 378, 391, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959); Permian Basin Area Rate Cases, supra; Austral Oil Co. v. F. P. C., supra. What the Commission proposes is to combine proceedings under Sections 4 and 7. In the single combined proceeding, says the Commission, the substantive standards of both Sections 4 and 7, as established by the courts, will be applied to the evidence produced by the applicant. If in weighing the evidence the Commission violates those substantive standards, the aggrieved party will have a remedy in the courts. On the present record, however, we must assume that the Commission will abide by the standards of the statute and the promises it has made. We cannot condemn the Commission on the theory that it may not do what it has promised to do. IV. Section 2.75 provides that the Commission may review and by one decision at the outset approve both an initial price and fixed rate escalations provided in the sales contract for future periods. The petitioners contend that review of fixed price escalations during the certificate proceedings, in advance of their effective" } ]